On 11/06/2019 CYNTHIA ANN ROMO, INDIVIDUALLY filed a Personal Injury - Uninsured Motor Vehicle lawsuit against 5648 EAST GOTHAM STREET, LLC , A CALIFORNIA LIMITED LIABILITY COMPANY DBA BRIARCREST NURSING CENTER. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Spring Street Courthouse
Los Angeles, California
ROMO INDIVIDUALLY CYNTHIA ANN
ROBERT JIMINEZ ROMO BY AND THROUGH HIS SUCCESSOR-IN-INTEREST CYNTHIA ANN ROMO
ROMO INDIVIDUALLY KEVIN ALLEN
ROMO INDIVIDUALLY KENNETH ROBERT
5648 EAST GOTHAM STREET LLC. A CALIFORNIA LIMITED LIABILITY COMPANY DBA BRIARCREST NURSING CENTER
ORTIZ RCP ANDREW O.
WIN WIN ENTERPRISES LLC. A CALIFORNIA LIMITED LIABILITY COMPANY.
ATIENZA LVN JOSEPHINE CALAYAG
FERMALINO R.N. JOSE FABULAR JR.
BATRES M.D. ERIC ROBERTO
BRIARCREST NURSING CENTER AN ENTITY OF UNKNOWN FORM
11/27/2019: PI General Order
11/27/2019: Certificate of Mailing for - CERTIFICATE OF MAILING FOR [PI GENERAL ORDER], STANDING ORDER RE PI PROCEDURES AND HEARING DATES
12/2/2019: Declaration - DECLARATION DECLARATION OF CYNTHIA ANN ROMO PURSUANT TO SECTION 377.32 OF THE CODE OF CIVIL PROCEDURE
11/6/2019: Summons - SUMMONS ON COMPLAINT
11/6/2019: Civil Case Cover Sheet
11/6/2019: Notice of Case Assignment - Unlimited Civil Case
Hearing11/02/2022 at 08:30 AM in Department 4B at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: DismissalRead MoreRead Less
Hearing05/05/2021 at 08:30 AM in Department 4B at 312 North Spring Street, Los Angeles, CA 90012; Non-Jury TrialRead MoreRead Less
Hearing04/21/2021 at 10:00 AM in Department 4B at 312 North Spring Street, Los Angeles, CA 90012; Final Status ConferenceRead MoreRead Less
DocketDECLARATION OF CYNTHIA ANN ROMO PURSUANT TO SECTION 377.32 OF THE CODE OF CIVIL PROCEDURE; Filed by KENNETH ROBERT ROMO, individually (Plaintiff)Read MoreRead Less
DocketCertificate of Mailing for ([PI General Order], Standing Order re PI Procedures and Hearing Dates); Filed by ClerkRead MoreRead Less
DocketPI General Order; Filed by ClerkRead MoreRead Less
DocketCivil Case Cover Sheet; Filed by CYNTHIA ANN ROMO, individually (Plaintiff); KENNETH ROBERT ROMO, individually (Plaintiff); KEVIN ALLEN ROMO, individually (Plaintiff) et al.Read MoreRead Less
DocketSummons (on Complaint); Filed by ROBERT JIMINEZ ROMO, by and through his successor-in-interest, CYNTHIA ANN ROMO (Plaintiff)Read MoreRead Less
DocketComplaint; Filed by CYNTHIA ANN ROMO, individually (Plaintiff); KENNETH ROBERT ROMO, individually (Plaintiff); KEVIN ALLEN ROMO, individually (Plaintiff) et al.Read MoreRead Less
DocketNotice of Case Assignment - Unlimited Civil Case; Filed by ClerkRead MoreRead Less
Case Number: 19STCV40067 Hearing Date: March 11, 2021 Dept: C
ROMO v. 5648 EAST GOTHAM STREET, LLC
CASE NO.: 19STCV40067
Defendant ANDREW O. ORTIZ’s Demurrer to Plaintiff’s Second Amended Complaint is OVERRULED.
Opposing Party to Give Notice.
Plaintiffs’ Request for Judicial Notice is GRANTED. Cal. Ev. Code §452.
This action for elder abuse was filed by Plaintiffs ROBERT JIMINEZ ROMO, by and through his successors-in-interest, KENNETH ROBERT ROMO, KEVIN ALLEN ROMO, and KENNETH ROBERT ROMO, individually, and KEVIN ALLEN ROMO, individually (“Plaintiffs”) on November 6, 2019. On May 15, 2020, a Second Amended Complaint (“SAC”) was filed.
The SAC asserts the following causes of action: (1) Elder Neglect; and (2) Medical Negligence.
Defendant ANDREW O. ORTIZ, RCP (“Ortiz”) generally demurs to the first cause of action.
First Cause of Action – Elder Neglect
A cause of action under the Elder Abuse Act must be alleged with particularity. (See Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.) Acts that constitute mere professional negligence do not constitute elder abuse. “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.” (Delaney v. Baker (1999) 20 Cal.4th 23, 31-32.) “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.” (See Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 405.) “‘[T]he legislature intended the Elder Abuse Act to sanction only egregious acts of misconduct distinct from professional negligence….” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 784.) In summary, to plead a cause of action for elder abuse under the Act based on neglect, a plaintiff must allege facts establishing that the defendant: “(1) had responsibility for meeting the basic needs of the elder or dependent adult,” “(2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs”; 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…or with conscious disregard for the high probability of such injury….” (Carter v. Prime Healthcare Paradise Valley, LLC (2011) 198 Cal.App.4th 396, 405-407.) A plaintiff must also allege facts demonstrating that the neglect caused the elder or dependent adult to suffer physical harm, pain, or mental suffering such that the causal link between the neglect and injury is specifically alleged. (Id at 407.) Section 15610.63(a)(1) defines neglect in relevant part as follows: “The negligent failure of any person having the care or custody of an elder or dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.” Subsection (b) provides specific examples of neglect, and states in relevant part: “Neglect includes… (3) [f]ailure to protect from health and safety hazards.” To state an elder abuse claim, a plaintiff must allege facts showing that an officer, director, or managing agent of defendant was involved in the abuse, authorized the abuse, ratified the abuse or hired the person who did the abuse with advance knowledge of the persons unfitness and hired him with a conscious disregard of the rights and safety of others. (Welf. & Inst. Code §15657(c); Cal. Civ. Code §3294.)
The demurrer to the first cause of action is OVERRULED.
Plaintiffs adequately allege the existence of a caretaking/custodial relationship. (SAC ¶23.) Further, Plaintiff adequately alleges a withholding of care. Plaintiffs allege the following facts: “Plaintiffs are informed and believe, and on that basis allege that Defendants, ATIENZA, FERMALINO and ORTIZ had an ongoing duty to protect Mr. ROMO from health and safety hazards… and that Defendant and each of them, neglected to and, and or failed to protect MR. ROMO from the known and, or foreseeable risk of injury and, or risk of death when they neglected and, or failed to remove the PMV on the night of November 6, 2018; when Mr. ROMO was not speaking, not alert and, or awake, during sleeping hours.” (SAC ¶25.) Plaintiffs further allege that ORTIZ failed to take Mr. Romo’s vital signs; failed to closely monitor Mr. Romo for changes; and left Mr. Romo unattended for prolonged periods of time with the PMV placed in his tracheostomy tube during periods of time when Mr. Romo was not awake or alert. (SAC ¶¶49-52.) “As a direct and proximate result of the reckless indifference and neglect of Defendants, mucous and, or sputum clogged the PMV, blocking MR. ROMO’s airway and causing him to choke, suffocate and become unresponsive as a result of oxygen deprivation to his brain, on the morning of November 7, 2018. (SAC ¶53.) “Defendants had knowledge that MR. ROMO was elderly, and admitted for medical care, including but not limited to tracheostomy care, nursing services, speech and respiratory therapy. Defendants knew that changes in MR. ROMO’s condition, such as episodes of anxiety, changes in quantity and quality of secretions, abnormal breathing, rhonchi lung sounds, changes in vital signs including his heart rate and respirations either indicated a serious change in condition, or itself posed a serious threat to his health.” (SAC ¶54.)
These allegations are sufficient to withstand demurrer.
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