This case was last updated from Los Angeles County Superior Courts on 03/25/2022 at 00:10:08 (UTC).

ABBY H. FRIEDMAN VS KEYVAN SHIRAZI M.D., ET AL.

Case Summary

On 06/29/2021 ABBY H FRIEDMAN filed a Personal Injury - Other Personal Injury lawsuit against KEYVAN SHIRAZI M D . This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is DANIEL M. CROWLEY. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******3992

  • Filing Date:

    06/29/2021

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

DANIEL M. CROWLEY

 

Party Details

Plaintiff

FRIEDMAN ABBY H.

Defendants

GRANCELL VILLAGE OF THE LOS ANGELES JEWISH HOME FOR THE AGING A CALIFORNIA CORPORATION

LOS ANGELES JEWISH HOME FOR THE AGING A CALIFORNIA CORPORATION

SHIRAZI M.D. KEYVAN

JHA GERIATRIC SERVICES INC. A CALIFORNIA CORPORATION

Attorney/Law Firm Details

Plaintiff Attorney

MANDELL ROBERT

Defendant Attorneys

SITAR LAURA K.

MCANDREWS THOMAS FRANCIS

 

Court Documents

Notice of Entry of Dismissal and Proof of Service

3/18/2022: Notice of Entry of Dismissal and Proof of Service

Request for Dismissal

1/27/2022: Request for Dismissal

Notice - DEFENDANTS' NOTICE OF WITHDRAWAL OF MOTIONS FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

1/25/2022: Notice - DEFENDANTS' NOTICE OF WITHDRAWAL OF MOTIONS FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

Notice - NOTICE OF WITHDRAWAL OF MOTION FOR SUMMARY ADJUDICATION

1/26/2022: Notice - NOTICE OF WITHDRAWAL OF MOTION FOR SUMMARY ADJUDICATION

Response - RESPONSE DEFENDANT'S RESPONSE TO PLAINTIFF'S OBJECTION TO THE DECLARATION OF KARL E. STEINBERG, MD.

1/21/2022: Response - RESPONSE DEFENDANT'S RESPONSE TO PLAINTIFF'S OBJECTION TO THE DECLARATION OF KARL E. STEINBERG, MD.

Objection - OBJECTION DEFENDANT'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF PLAINTIFF'S EXPERT CYNDY MINNERY, RN, BSN

1/21/2022: Objection - OBJECTION DEFENDANT'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF PLAINTIFF'S EXPERT CYNDY MINNERY, RN, BSN

Reply - REPLY DEFENDANT GRANCELL VILLAGE OF THE LOS ANGELES JEWISH HOME FOR THE AGING'S REPLY TO PLAINTIFF'S OPPOSITION AND IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

1/21/2022: Reply - REPLY DEFENDANT GRANCELL VILLAGE OF THE LOS ANGELES JEWISH HOME FOR THE AGING'S REPLY TO PLAINTIFF'S OPPOSITION AND IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Separate Statement

1/21/2022: Separate Statement

Objection - OBJECTION DEFENDANT'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF ROBERT MANDELL, ESQ.

1/21/2022: Objection - OBJECTION DEFENDANT'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF ROBERT MANDELL, ESQ.

Notice of Settlement

1/25/2022: Notice of Settlement

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 01/25/2022

1/25/2022: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 01/25/2022

Minute Order - MINUTE ORDER (COURT ORDER)

1/25/2022: Minute Order - MINUTE ORDER (COURT ORDER)

Opposition - OPPOSITION DEFENDANTS' OPPOSITION TO PLAINTIFF'S EX PARTE APPLICATION TO CONTINUE TRIAL

1/20/2022: Opposition - OPPOSITION DEFENDANTS' OPPOSITION TO PLAINTIFF'S EX PARTE APPLICATION TO CONTINUE TRIAL

Ex Parte Application - EX PARTE APPLICATION TO CONTINUE TRIAL DATE

1/20/2022: Ex Parte Application - EX PARTE APPLICATION TO CONTINUE TRIAL DATE

Notice of Ruling

1/21/2022: Notice of Ruling

Minute Order - MINUTE ORDER (PLAINTIFF'S EX PARTE APPLICATION TO CONTINUE TRIAL DATE)

1/21/2022: Minute Order - MINUTE ORDER (PLAINTIFF'S EX PARTE APPLICATION TO CONTINUE TRIAL DATE)

Declaration - DECLARATION DECLARATION OF CYNDY MINNERY IN SUPPORT OF PLAINTIFF'S OPPOSITION TO DEFENDANT GRANCELL VILLAGE OF THE LOS ANGELES JEWISH HOME FOR THE AGING'S MOTION FOR SUMMARY JUDGMENT OR

1/11/2022: Declaration - DECLARATION DECLARATION OF CYNDY MINNERY IN SUPPORT OF PLAINTIFF'S OPPOSITION TO DEFENDANT GRANCELL VILLAGE OF THE LOS ANGELES JEWISH HOME FOR THE AGING'S MOTION FOR SUMMARY JUDGMENT OR

Objection - OBJECTION PLAINTIFF'S OBJECTIONS TO THE DECLARATION OF KARL E. STEINBERG, MD IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

1/11/2022: Objection - OBJECTION PLAINTIFF'S OBJECTIONS TO THE DECLARATION OF KARL E. STEINBERG, MD IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

98 More Documents Available

 

Docket Entries

  • 04/29/2022
  • Hearing04/29/2022 at 08:30 AM in Department 28 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: Dismissal after Settlement

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  • 03/18/2022
  • DocketNotice of Entry of Dismissal and Proof of Service; Filed by Keyvan Shirazi M.D. (Defendant)

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  • 03/10/2022
  • Docketat 1:30 PM in Department 28, Daniel M. Crowley, Presiding; Hearing on Motion for Trial Preference - Not Held - Rescheduled by Party

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  • 02/23/2022
  • Docketat 08:30 AM in Department 28, Daniel M. Crowley, Presiding; Jury Trial - Not Held - Advanced and Vacated

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  • 02/09/2022
  • Docketat 10:00 AM in Department 28, Daniel M. Crowley, Presiding; Final Status Conference - Not Held - Advanced and Vacated

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  • 02/09/2022
  • Docketat 08:30 AM in Department 28, Daniel M. Crowley, Presiding; Jury Trial - Not Held - Advanced and Continued - by Court

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  • 02/08/2022
  • Docketat 1:30 PM in Department 28, Daniel M. Crowley, Presiding; Hearing on Motion for Summary Adjudication - Not Held - Advanced and Vacated

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  • 01/27/2022
  • Docketat 1:30 PM in Department 28, Daniel M. Crowley, Presiding; Hearing on Motion for Summary Judgment (of Grancel Village of the Los Angeles Jewish Home for the Aging) - Not Held - Taken Off Calendar by Party

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  • 01/27/2022
  • Docketat 1:30 PM in Department 28, Daniel M. Crowley, Presiding; Hearing on Motion for Summary Judgment (of Los Jewish Home for the Aging) - Not Held - Advanced and Vacated

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  • 01/27/2022
  • DocketRequest for Dismissal; Filed by Abby H. Friedman (Plaintiff)

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111 More Docket Entries
  • 07/28/2021
  • DocketSummons (on First Amended Complaint); Filed by Abby H. Friedman (Plaintiff)

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  • 07/14/2021
  • DocketProof of Service by Substituted Service; Filed by Abby H. Friedman (Plaintiff)

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  • 07/14/2021
  • DocketProof of Service by Substituted Service; Filed by Abby H. Friedman (Plaintiff)

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  • 07/14/2021
  • DocketProof of Service by Substituted Service; Filed by Abby H. Friedman (Plaintiff)

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  • 07/09/2021
  • DocketPI General Order; Filed by Clerk

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  • 07/09/2021
  • DocketCertificate of Mailing for ([PI General Order], Standing Order re PI Procedures and Hearing Dates); Filed by Clerk

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  • 06/29/2021
  • DocketComplaint; Filed by Abby H. Friedman (Plaintiff)

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  • 06/29/2021
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

    Read MoreRead Less
  • 06/29/2021
  • DocketSummons (on Complaint); Filed by Abby H. Friedman (Plaintiff)

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  • 06/29/2021
  • DocketCivil Case Cover Sheet; Filed by Abby H. Friedman (Plaintiff)

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Tentative Rulings

b"

Case Number: *******3992 Hearing Date: December 9, 2021 Dept: 28

Demurrer to Complaint

Having considered the moving, opposing, and replying papers, the Court rules as follows.

BACKGROUND

On June 29, 2021, Plaintiff Abby Friedman (“Plaintiff”) filed a complaint against Defendants Keyvan Shirazi, M.D., Los Angeles Jewish Home for the Aging, Grancell Village of the Los Angeles Jewish Home for the Aging, and Does 1-100 (Collectively “Defendants”) alleging two causes of action for 1) negligence and 2) reckless neglect in violation of California’s Elder Abuse Act (Wel. and Ins. Code ¶15600 et seq.)

On July 28, 2021, Plaintiff filed her first amended complaint.

On October 28, 2021, Plaintiff filed her second amended complaint.

On November 2, 2021, Defendant Keyvan Shirazi, M.D. filed a demurrer to Plaintiff’s second amended complaint.

On November 22, 2021, Plaintiff filed an opposition to Defendant’s Shirazi’s demurrer.

On December 2, 2021, Defendant filed a reply to Plaintiff’s opposition.

Trial is set for February 9, 2022.

PARTY’S REQUEST

Defendant Keyvan Shirazi, M.D. requests a court order sustaining the demurrer to second causes of action for elder abuse on grounds that Plaintiff has failed to state facts sufficient to constitute these causes of action against Defendant.

LEGAL STANDARD

Meet and Confer

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to in person or by telephone for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (See Code of Civ. Proc. ; 430.41.)

The Court finds that the Defendant satisfied the meet and confer requirement in CCP Section 430.41. (Davenport Decl. ¶ 4-5.)

Demurrer

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, 147 Cal.App.4th at p. 747.)

DISCUSSION

Defendant demurs to the second cause of action for elder abuse and specifically that Defendant engaged in any reckless or willful conduct towards Plaintiff.

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, supra, 198 Cal.App.4th at 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., supra, 32 Cal.4th at 790).) There must be an allegation of authorization or ratification on the part of a managing agent in order to recover damages for dependent adult abuse against corporate defendants. (Civ. Code, ; 3294; Cal. Welf. & Inst. Code, ; 15657(c).)

“‘[N]eglect’ within the meaning of Welfare and Institutions Code section 15610.57 covers an area of misconduct distinct from ‘professional negligence.’” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783.) “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.’” (Id.) In order to distinguish Dependent Adult Abuse from Professional Negligence, there must be a showing of recklessness, fraud, malice, or oppression. (Id.) “Oppression, fraud, and malice involve intentional, willful, or conscious wrongdoing of a despicable or injurious nature.” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 405 (internal quotation marks omitted).) Recklessness requires deliberate disregard of a high degree of probability an injury will occur. (Id.) The enhanced remedies for Elder Abuse are only available for “acts of egregious abuse against elder and dependent adults.” (Id.)

The second amended complaint (SAC) alleges that on April 13, 2021, Plaintiff was admitted to the subject facility operated by Defendant Grancell and/ or Defendant LAJHA, where Defendant Shirazi is the medical director and physician responsible for making appropriate orders relation to the patients’ care when they are admitted. (SAC ¶ 37-39.) The SAC alleges that Plaintiff was 30 years old, suffered from Lewy Body Dementia, had fallen before, and had significant mental and physical limitation that made her susceptible to falling and qualified her as a dependent adult. (SAC ¶ 39.) Upon admission, she was qualified as “high risk” for falls, due to her forgetfulness, impaired cognition, and tendency to get up by herself. (SAC ¶ 41.) The SAC alleges that despite this knowledge, Defendants failed to provide sufficient care in the form of a lowered bed, a crash pad, other means of fall prevention, a functioning bed alarm, proper patient monitoring, no proper assistance in getting in or out the bed for living. (SAC ¶ 41-42.) Plaintiff alleges that Defendants purposefully and/or recklessly withheld necessary fall risk preauction and preventative measures from Plaintiff and allege that such conduct was a violation of instructions on how to properly care for patients’ susceptibility to falling, fell below the standard of care for physician and nursing care facilities, which subjected her to increased risk of falling and caused her fall on April 23, 2021, that broke her other hip. (SAC ¶ 42.) Plaintiff’s SAC alleges that she was a member of the class of person’s intended to be protected by the Elder Abuse Act (Wel. and Ins. Code ¶15600 et seq.) Plaintiff also alleges that the facility was a skilled nursing and long-term care facility as defined by Welfare and Institutions Code section 15610.37, and/or care custodians as defined in Welfare and Institutions Code section 15610.17

Defendant demurs to the second amended complaint for elder abuse on the grounds that Plaintiff failed to allege any facts showing that Defendant Shirazi was a care custodian of Plaintiff or that he engaged in any reckless or willful conduct towards Plaintiff. As the Court stated in its decision on the last demurrer, Plaintiff must show that Defendants were in a caretaking or custodial relationship.

Under Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, the California Supreme Court explained that Welfare & Institutions Code, section 15600 et seq. “does not apply unless the defendant health care provider had a substantial caretaking or custodial relationship, involving ongoing responsibility for one or more basic needs, with the elder patient.” (Winn, 63 Cal.4th at p. 152.) The court explains the legislature’s intent to distinguish between “the underlying concept of neglect… with the sort of conduct triggering more conventional tort liability” only allowing causes of action sounding in neglect for “certain situations [that] place elders and dependent adults at heightened risk of harm, and [therefore require] heightened remedies relative to conventional tort remedies.” (Id. at pp. 159–160.) Specifically, the court states that a relationship contemplated by the code requires “the existence of a robust caretaking or custodial relationship—that is, a relationship where a certain party has assumed a significant measure of responsibility for attending to one or more of an elder's basic needs that an able-bodied and fully competent adult would ordinarily be capable of managing without assistance.” (Id. at p. 158.)

The SAC alleges that Plaintiff was admitted to the facility under the direct care and supervision of Defendant Shirazi and facility. (SAC ¶ 39.) Plaintiff also alleges that Defendant were aware that Plaintiff was and is unable to perform her own basic needs that an able-bodied and fully competent adult could ordinarily manage without assistance. (SAC ¶ 39.) Therefore, a custodial relationship may have existed between Plaintiff and other Defendants in this matter, but Plaintiff has failed to show that a custodial relationship existed between Defendant Shirazi and Plaintiff per Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148.

The Court does not find a custodial relationship existed between Defendant Shirazi and Plaintiff. Plaintiff fails to allege any facts that show that Defendant Shirazi “had assumed a significant measure of responsibility for attending to one or more of an elder's basic needs that an able-bodied and fully competent adult would ordinarily be capable of managing without assistance.” Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148. Plaintiff does not plead any facts that shows Defendant had individually assumed responsibility for attending to Plaintiff and her care. Plaintiff also does not allege facts to show that Defendant was designated to provide care to Plaintiff or that the relationship was ongoing.

As a result of Plaintiff failing to allege that a custodial relationship existed between Defendant Shirazi and Plaintiff, the Court will not come to a conclusion as to whether the alleged neglect of the care custodians rises to the level of recklessness.

CONCLUSION

Based on the foregoing, Defendant Keyvan Shirazi, M.D. demurrer to the seconded amended complaint is SUSTAINED with leave to amend.

Moving Defendant is ordered to give notice of this ruling.

"


b'

Case Number: *******3992 Hearing Date: October 12, 2021 Dept: 28

Defendant’s Demurrer to Plaintiff’s First Amended Complaint

Having reviewed the demurrer, the Opposition, the notice of errata, and the Reply, the Court rules as follows.

BACKGROUND

On June 29, 2021, Plaintiff Abby H. Friedman (“Plaintiff”) filed a Complaint against Defendants Keyvan Shirazi, M.D. (“Shirazi”); Los Angeles Jewish Home for the Aging (“LAJHA”); Grancell Village of the Los Angeles Jewish Home for the Aging (“Grancell”); and DOES 1 – 100, inclusive, alleging 2 causes of action arising from injuries sustained during Plaintiff’s residency at Defendant’s facility and subsequent treatment by Defendants.

On August 28, 2021, Plaintiff filed a First Amended Complaint bringing the same causes of action against the same Defendants.

On September 13, 2021, Defendant Keyvan Shirazi, M.D. filed this instant demurrer.

On September 24, 2021, Plaintiff filed an Opposition.

On September 29, 2021, Defendant Shirazi filed a Notice of Errata.

On October 6, 2021, Defendant Shirazi filed a Reply.

Trial is set for December 27, 2022 (to be advanced to 2/9/2022).

PARTY’S REQUEST

Defendant Shirazi demurs only to the second cause of action in the First Amended Complaint (Elder Abuse Based on Reckless Neglect), alleging that it fails to state sufficient facts to bring a claim against him.

LEGAL STANDARD

Meet and Confer

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to, in person or telephonically, for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., ; 430.41.)

Demurrer

Code of Civil Procedure ; 430.10 provides, in relevant part:

The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in ; 430.30, to the pleading on any one or more of the following grounds:

(a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading. (b) The person who filed the pleading does not have the legal capacity to sue. (c) There is another action pending between the same parties on the same cause of action. (d) There is a defect or misjoinder of parties. (e) The pleading does not state facts sufficient to constitute a cause of action. (f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible. (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct. (h) No certificate was filed as required by ; 411.35.

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, 147 Cal.App.4th at p. 747.) The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 133 [stating, “[o]n demurrer, pleadings are read liberally, and allegations contained therein are assumed to be true”].)

DISCUSSION

Defendant Shirazi filed a Notice of Errata to the demurrer after Plaintiff filed an Opposition. The Court notes that the Notice of Errata did not substantively change the demurrer in any meaningful way, as it only removed the argument demurring from the first cause of action for Negligence. Defendant Shirazi is no longer demurring to the First Cause of Action and is now only demurring to the claim for Elder Abuse Based on Reckless Negligence. The argument as it relates to that cause of action appears unchanged. As such, the Court considers this amendment to the demurrer to be non-prejudicial to Plaintiff and will consider the demurrer attached to the notice of errata, rather than the one initially filed and served.

The Court notes that Defendant attempted to meet & confer but the parties have not reached an agreement.

The FAC alleges that on April 13, 2021, Ms. Friedman was admitted to the subject facility operated by Defendant Grancell and/or Defendant LAJHA, where Dr. Shirazi is the medical director and physician responsible for making appropriate orders relating to the patients’ care when they are admitted. Ms. Friedman was 80 years old and was being admitted with a broken hip and hip replacement surgery. The FAC alleges that each of the Defendants knew that Plaintiff was 80 years old, suffered from Lewy Body Dementia, had fallen before, and had significant mental and physical limitations that made her susceptible to falling and qualified her as a dependent adult. Upon admission, she was qualified as “high risk” for falls, due to her forgetfulness, impaired cognition, and tendency to get up by herself. The FAC alleges that despite this knowledge, Defendants failed to provide sufficient care in the form of a lowered bed, a crash pad, other means of fall prevention, a functioning bed alarm, proper patient monitoring, nor proper assistance in getting in or out of bed for daily living. Plaintiff contends that such conduct was a violation of instructions on how to properly care for patients susceptible to falling, fell below the standard of care for physicians and nursing care facilities, subjected her to increased risk of falling, and caused her fall on April 23, 2021 that broke her other hip. Plaintiff’s FAC alleges that she was a member of the class of person’s intended to be protected by the Elder Abuse Act (Welfare & Institutions Code section 15600, et. seq.) Plaintiff also alleges that the facility was a skilled nursing and long-term care facility as defined in Welfare & Institutions Code section 15610.47, a health practitioner as defined by Welfare & Institutions Code section 15610.37, and/or care custodians as defined in Welfare & Institutions Code section 15610.17.

Defendant Shirazi alleges that Plaintiff has failed to establish the existence of a caretaking or custodial relationship between Defendant Shirazi and Plaintiff. The California Supreme Court has held that the Elder Abuse Act “does not apply unless the defendant health care provider had a substantial caretaking or custodial relationship, involving ongoing responsibility for one or more basic needs, with the elder patient.” (Winn v. Pioneer Medical Group, Inc., (2016) 63 Cal.4th 148, 152). “[N]othing in the legislative history suggests that the Legislature intended the Act to apply whenever a doctor treats any elderly patient.” (Id. at 163.) Rather, the Act applies where the relationship exists and where the conduct is “so egregious in nature that it constitutes true abuse in the plain meaning of that term.” (Id. at 160.)

Defendant Shirazi alleges that the FAC does not show that Dr. Shirazi had such a relationship with Plaintiff. The Supreme Court of California has held that a custodial relationship exists “where a person has assumed significant responsibility for attending to one or more of those basic needs of the elder or dependent adult that an able-bodied and fully competent adult would ordinarily be capable of managing without assistance[.]” (Id. at 155.) The FAC only explicitly Dr. Shirazi as the doctor making care decisions when patients are admitted. The Winn Court held that a “party with only circumscribed, intermittent, or episodic engagement” would not be expected to have care or custody over another individual, even on “who may be particularly vulnerable.” (Id. at 158.) Winn requires an “ongoing responsibility for one or more basic needs.” (Id. at 152.)

Defendant additionally alleges that Plaintiff’s FAC fails to meet the heightened pleading standard needed to show elder abuse. The acts specified in Welfare & Institutions Code section 15657 do not include professional negligence and instead refer to forms of abuse or neglect performed with some state of culpability greater than mere negligence. (Delaney v. Baker, (1999) 20 Cal.4th 23, 32.) In Began v. Superior Court, the Court held that pleading in the language of the statute is appropriate where other facts support the allegations, but that statutory terms themselves are conclusory. (See Began v. Superior Court, (1981) 125 Cal.App.3d 959, 963.) Defendant argues that Plaintiff fails to offer any factual support of recklessness, oppression, fraud, or malice on behalf of Dr. Shirazi. Defendant Dr. Shirazi contends that Plaintiff has at best pled negligence, for which the Elder Abuse Act does not apply.

In Opposition, Plaintiff argues that the allegations in the FAC are sufficient to withstand demurrer. Plaintiff primarily points to the facts recited above. Plaintiff contends that she has pled sufficient facts to show that Dr. Shirazi had a custodial caretaking relationship with her. Plaintiff recites the allegations and attempts to apply them to the statutory language and jury instructions to show that a relationship existed.

Plaintiff also argues that she has provided sufficient facts to demonstrate that the neglect alleged was reckless. Plaintiff argues that by alleging that Defendant Shirazi 1) knew of conditions that made Plaintiff unable to provide for her own needs (her medical conditions, series of falls, notes on admission indicating she was high risk) and 2) denied or withheld treatment for those conditions with conscious disregard of the risk, Plaintiff has properly demonstrated recklessness.

The Court does not find that a custodial relationship existed between Defendant Dr. Shirazi himself and Plaintiff. Such a conclusion is controverted by the portions of the Complaint that allege Dr. Shirazi was responsible for determining Plaintiff’s care when she was admitted (and not in an ongoing fashion) and where it alleges that the facility itself, which the FAC specifically alleges was run only by Grancell and LAJHA, was a skilled nursing long-term care facility/health practitioner/care custodian. The FAC notably does not include Defendant Dr. Shirazi in the parties it alleges to be a care custodian. This is not to say that a custodial caretaker relationship did not exist between Plaintiff and Defendant Shirazi, only that Plaintiff has not pled sufficient facts to show that there was a substantial caretaking relationship where Dr. Shirazi himself was responsible for Plaintiff’s basic needs and that the relationship is ongoing.

As the Court does not find that the FAC contains sufficient facts to show Defendant Shirazi was a care custodian of Plaintiff, the Court cannot find that the Elder Abuse Act applies. Given that the Court does not find that Defendant Shirazi was a care custodian, the Court does not come to a conclusion as to whether the alleged neglect of the care custodians rises to the level of recklessness.

The demurrer is therefore SUSTAINED. The Court will grant 20 days leave to amend so Plaintiff may remedy the defects and provide additional facts supporting her second cause of action.

CONCLUSION

Defendant Shirazi’s Demurrer to Plaintiff’s First Amended Complaint is SUSTAINED.

Plaintiff has 20 days leave to amend.

Defendant Shirazi is ordered to give notice.

__________________________________________________________

Plaintiff Abby H. Friedman’s Motion for Trial Preference

Having reviewed the motion and both Oppositions, the Court rules as follows.

BACKGROUND

On June 29, 2021, Plaintiff Abby H. Friedman (“Plaintiff”) filed a Complaint against Defendants Keyvan Shirazi, M.D. (“Shirazi”); Los Angeles Jewish Home for the Aging (“LAJHA”); Grancell Village of the Los Angeles Jewish Home for the Aging (“Grancell”); and DOES 1 – 100, inclusive (collectively, “Defendants”), alleging 2 causes of action arising from injuries sustained during Plaintiff’s residency at Defendant’s facility and subsequent treatment by Defendants.

On August 28, 2021, Plaintiff filed a First Amended Complaint bringing the same causes of action against the same Defendants.

On August 13, 2021, Plaintiff filed this instant motion for preference.

On September 15, 2021, Defendants Grancell and LAJHA filed an Opposition.

Also on September 15, 2021, Defendant Shirazi filed an Opposition.

On September 28, 2021, the Court continued the hearing on this matter to October 12, 2021.

On September 30, 2021, Plaintiff’s counsel filed an addendum to the motion.

Trial is set for December 27, 2022.

PARTY’S REQUEST

Plaintiff requests trial preference on the basis that she is more than 70 years of age, has a substantial interest in the litigation, and her health is such that preference is necessary.

LEGAL STANDARD

California Code of Civil Procedure section 36 states, in relevant part: “(a) A party to a civil action who is over 70 years of age may petition the court for a preference, which the court shall grant if the court makes both of the following findings: (1) The party has a substantial interest in the action as a whole. (2) The health of the party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation. . . . (c) Unless the court otherwise orders: (1) A party may file and serve a motion for preference supported by a declaration of the moving party that all essential parties have been served with process or have appeared. (2) At any time during the pendency of the action, a party who reaches 70 years of age may file and serve a motion for preference. . . . (e) Notwithstanding any other provision of law, the court may in its discretion grant a motion for preference that is supported by a showing that satisfies the court that the interests of justice will be served by granting this preference. (f) Upon the granting of such a motion for preference, the court shall set the matter for trial not more than 120 days from that date. . . .”

California Code of Civil Procedure ; 36.5 states, “An affidavit submitted in support of a motion for preference under subdivision (a) of Section 36 may be signed by the attorney for the party seeking preference based upon information and belief as to the medical diagnosis and prognosis of any party. The affidavit is not admissible for any purpose other than a motion for preference under subdivision (a) of Section 36.”

“Failure to complete discovery or other pretrial matters does not affect the absolute substantive right to trial preference for those litigants who qualify for preference under subdivision (a) of Section 36. . . . The express legislative mandate for trial preference is a substantive public policy concern which [supersedes] such considerations.” (Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1086-1087 [citation omitted].) Mere inconvenience to the court or to other litigants is irrelevant. (Rice ;v. ;Superior Court ;(1982) ;136 Cal.App.3d 81, 89-94; ;but see ;Polibrid ;Coatings, Inc. v. Superior Court ;(2003) 112 Cal.App.4th 920, 923-924 [when brought into case after over half the time to litigate has passed, party should be given “at least enough time” to “reasonably complete discovery and bring a summary judgment motion.”].)

DISCUSSION

Plaintiff is an 80-year-old woman who suffers from Lewy body dementia, malnutrition, hypertension, anemia, and heart disease with pacemaker implantation. She is the sole Plaintiff in the action and the only victim of the alleged conduct.

Defendants argue that there is insufficient evidence that Plaintiff will be dead or incapacitated by the trial date of December 27, 2022 or within 6 months from the filing of the motion (4 months from this hearing). Defendants also argue that substantial medical documentation is necessary, pursuant to Code of Civil section 36(d), to grant the motion. The Court does not find that this is accurate. Section 36(d) exists separately from 36(a); the former relates to any party, regardless of age, that has a terminal illness that demonstrates they may not survive beyond 6 months; the latter relates specifically to parties aged 70 or older, for whom there is not the same requirement of a substantial showing of medical documentation. Only an attorney’s declaration is required for a party over the age of 70. (Fox v. Superior Court (2018) 230 Cal. Rptr. 3d 493, 534.) Defendants moreover argue that granting the trial preference will deny the Defendants right to discovery, while Plaintiff will not be prejudiced by keeping the current date.

At the hearing on September 28, 2021, Defendant argued that because he intends to move for summary judgment, and because the dates for hearings on such motions are well beyond the date of trial if Plaintiff is given trial preference, and because the motion requires a 75-day notice period, the Court should not grant preference.

On September 30, 2021, Plaintiff filed an addendum, arguing that the proper course of action if Defendant intends to bring such a motion is to file the motion and thereafter ask the Court to shorten the period of time before trial within which it may be heard.

The Court notes that Plaintiff meets the statutory requirements for trial preference to be granted and finds that there is good cause to give such preference given the real possibility of Plaintiff not surviving through the action as it is currently scheduled. The Court finds Defendants’ arguments in opposition unconvincing. Defendants will not be precluded from conducting discovery as to liability and damages in the 90 to 120 days before the trial commences. Further, the Court will set the trial date for the maximum allowable time under the statute; therefore, prejudice to Defendants will be minimal.

The motion is GRANTED. The Court will set the trial date for 120 days from this date, on Wednesday, February 9, 2022, subject to any subsequent stipulations to continue the trial date.

CONCLUSION

Plaintiff’s Motion for Trial Preference is GRANTED.

The Non-Jury Trial scheduled for 12/27/2022 is advanced to 2/9/2022 at 08:30 AM in Department 28 at Spring Street Courthouse.

The Final Status Conference scheduled for 12/13/2022 is advanced to 1/26/2022 at 10:00 AM in Department 28 at Spring Street Courthouse.

Discovery and Law and Motion, and all pre-trial cut-offs track the new trial date.

Plaintiff is ordered to give notice.

The parties are directed to the header of this tentative ruling for further instructions.

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b'

Case Number: *******3992 Hearing Date: September 28, 2021 Dept: 28

Plaintiff Abby H. Friedman’s Motion for Trial Preference

Having reviewed the motion and both Oppositions, the Court rules as follows.

BACKGROUND

On June 29, 2021, Plaintiff Abby H. Friedman (“Plaintiff”) filed a Complaint against Defendants Keyvan Shirazi, M.D. (“Shirazi”); Los Angeles Jewish Home for the Aging (“LAJHA”); Grancell Village of the Los Angeles Jewish Home for the Aging (“Grancell”); and DOES 1 – 100, inclusive, alleging 2 causes of action arising from injuries sustained during Plaintiff’s residency at Defendant’s facility and subsequent treatment by Defendants.

On August 13, 2021, Plaintiff filed this instant motion for preference.

On September 15, 2021, Defendants Grancell and LAJHA filed an Opposition.

Also on September 15, 2021, Defendant Shirazi filed an Opposition.

Trial is set for December 27, 2022.

PARTY’S REQUEST

Plaintiff requests trial preference on the basis that she is more than 70 years of age, has a substantial interest in the litigation, and her health is such that preference is necessary.

LEGAL STANDARD

California Code of Civil Procedure section 36 states, in relevant part: “(a) A party to a civil action who is over 70 years of age may petition the court for a preference, which the court shall grant if the court makes both of the following findings: (1) The party has a substantial interest in the action as a whole. (2) The health of the party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation. . . . (c) Unless the court otherwise orders: (1) A party may file and serve a motion for preference supported by a declaration of the moving party that all essential parties have been served with process or have appeared. (2) At any time during the pendency of the action, a party who reaches 70 years of age may file and serve a motion for preference. . . . (e) Notwithstanding any other provision of law, the court may in its discretion grant a motion for preference that is supported by a showing that satisfies the court that the interests of justice will be served by granting this preference. (f) Upon the granting of such a motion for preference, the court shall set the matter for trial not more than 120 days from that date. . . .”

California Code of Civil Procedure ; 36.5 states, “An affidavit submitted in support of a motion for preference under subdivision (a) of Section 36 may be signed by the attorney for the party seeking preference based upon information and belief as to the medical diagnosis and prognosis of any party. The affidavit is not admissible for any purpose other than a motion for preference under subdivision (a) of Section 36.”

“Failure to complete discovery or other pretrial matters does not affect the absolute substantive right to trial preference for those litigants who qualify for preference under subdivision (a) of Section 36. . . . The express legislative mandate for trial preference is a substantive public policy concern which [supersedes] such considerations.” (Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1086-1087 [citation omitted].) Mere inconvenience to the court or to other litigants is irrelevant. (Rice ;v. ;Superior Court ;(1982) ;136 Cal.App.3d 81, 89-94; ;but see ;Polibrid ;Coatings, Inc. v. Superior Court ;(2003) 112 Cal.App.4th 920, 923-924 [when brought into case after over half the time to litigate has passed, party should be given “at least enough time” to “reasonably complete discovery and bring a summary judgment motion.”].)

DISCUSSION

Plaintiff is an 80-year-old woman who suffers from Lewy body dementia, malnutrition, hypertension, anemia, and heart disease with pacemaker implantation. She is the sole Plaintiff in the action and the only victim of the alleged conduct.

Defendants argue that there is insufficient evidence that Plaintiff will be dead or incapacitated by the trial date of December 27, 2022 or within 6 months from the filing of the motion (4 months from this hearing). Defendants also argue that substantial medical documentation is necessary, pursuant to Code of Civil section 36(d), to grant the motion. The Court does not find that this is accurate. Section 36(d) exists separately from 36(a); the former relates to any party, regardless of age, that has a terminal illness that demonstrates they may not survive beyond 6 months; the latter relates specifically to parties aged 70 or older, for whom there is not the same requirement of a substantial showing of medical documentation. Only an attorney’s declaration is required for a party over the age of 70. (Fox v. Superior Court (2018) 230 Cal. Rptr. 3d 493, 534.) Defendants moreover argue that granting the trial preference will deny the Defendants right to discovery, while Plaintiff will not be prejudiced by keeping the current date.

The Court notes that Plaintiff meets the statutory requirements for trial preference to be granted and finds that there is good cause to give such preference given the real possibility of Plaintiff not surviving through the action as it is currently scheduled. The Court finds Defendants’ arguments in opposition unconvincing. Defendants will not be precluded from conducting discovery as to liability and damages in the 90 to 120 days before the trial commences. Further, the Court will set the trial date for the maximum allowable time under the statute; therefore, prejudice to Defendants will be minimal.

The motion is GRANTED. The Court will set the trial date for 120 days from this date, Wednesday, January 26, 2022, subject to any subsequent stipulations to continue the trial date.

CONCLUSION

Plaintiff’s Motion for Trial Preference is GRANTED.

The Non-Jury Trial scheduled for 12/27/2022 is advanced to 1/26/2022 at 08:30 AM in Department 28 at Spring Street Courthouse.

The Final Status Conference scheduled for 12/13/2022 is advanced to 1/12/2022 at 10:00 AM in Department 28 at Spring Street Courthouse.

Discovery and Law and Motion, and all pre-trial cut-offs track the new trial date.

Plaintiff is ordered to give notice.

The parties are directed to the header of this tentative ruling for further instructions.

'


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