Personal Injury - Elder/Dependant Adult Abuse
Los Angeles, California
TORRES ESTATE OF HAYDEE
COUNTRY VILLA EAST L.P. DBA COUNTRY VILLA EAST NURSING CENTER
GIBRALTAR CONVALESCENT HOSPITAL INC. DBA SUNSET MANOR CONVALESCENT HOME
BALDWIN PARK CONGREGATE HOME INC.
UNITED CONVALESCENT FACILITIES INC. DBA UNIVERSITY PARK HEALTHCARE CENTER
RAMBHATLA KAMALAKAR M.D.
AHMC GREATER EL MONTE COMMUNITY HOSPITAL L.P. DBA GREATER EL MONTE COMMUNITY HOSPITAL
COUNTRY VILLA EAST NURSING CENTER
WEST JAMES L.
BARBER DUNCAN SCOTT
NESSEL CHERYL P.
WEND CHRISTOPHER P
ZITSOW ARTHUR ELLIOT
SCHADRACK MARK ALLEN
SHEPARDSON MARSHALL J
8/14/2020: Request for Dismissal
8/26/2020: Notice of Entry of Dismissal and Proof of Service
8/14/2020: Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: DISMISSAL)
8/17/2020: Request for Dismissal
7/20/2020: Request for Dismissal
7/10/2020: Request for Dismissal
4/15/2020: Notice Re: Continuance of Hearing and Order
3/23/2020: Notice Re: Continuance of Hearing and Order
3/11/2020: Request for Dismissal
2/7/2020: Notice of Posting of Jury Fees
2/7/2020: Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)
2/7/2020: Case Management Order
1/21/2020: Case Management Statement
1/23/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (NUNC PRO TUNC ORDER) OF 01/23/2020
1/23/2020: Minute Order - MINUTE ORDER (NUNC PRO TUNC ORDER)
1/8/2020: Notice of Ruling - NOTICE OF RULING RULING RE DEFENDANT KAMALAKAR RAMBHATLA'S DEMURRER AND MOTION TO STRIKE PORTIONS OF THE SECOND AMENDED COMPLAINT; DEFENDANT AHMC GREATER EL MONTE COMMUNITY HOSPITAL
1/13/2020: Minute Order - MINUTE ORDER (NUNC PRO TUNC ORDER)
Docketat 09:00 AM in Department 61, Gregory Keosian, Presiding; Jury Trial ((5 Day estimate)) - Not Held - Vacated by Court[+] Read More [-] Read Less
Docketat 09:00 AM in Department 61, Gregory Keosian, Presiding; Final Status Conference - Not Held - Vacated by Court[+] Read More [-] Read Less
Docketat 09:00 AM in Department 61, Gregory Keosian, Presiding; Post-Mediation Status Conference - Not Held - Vacated by Court[+] Read More [-] Read Less
Docketat 09:00 AM in Department 61, Gregory Keosian, Presiding; Hearing on Motion for Summary Judgment - Not Held - Taken Off Calendar by Party[+] Read More [-] Read Less
DocketNotice of Entry of Dismissal and Proof of Service; Filed by AHMC Greater El Monte Community Hospital LP Erroneously Sued As AHMC Greater El Monte Community Hospital L.P. (Respondent)[+] Read More [-] Read Less
DocketRequest for Dismissal; Filed by Estate of Haydee Torres (Petitioner)[+] Read More [-] Read Less
Docketat 09:00 AM in Department 61, Gregory Keosian, Presiding; Order to Show Cause Re: Dismissal - Held[+] Read More [-] Read Less
DocketMinute Order ( (Order to Show Cause Re: Dismissal)); Filed by Clerk[+] Read More [-] Read Less
DocketRequest for Dismissal; Filed by Estate of Haydee Torres (Petitioner); Jimmy Mejia (Petitioner); Edwin Torres (Petitioner)[+] Read More [-] Read Less
Docketat 09:00 AM in Department 61, Gregory Keosian, Presiding; Hearing on Motion for Summary Judgment - Not Held - Advanced and Vacated[+] Read More [-] Read Less
DocketNotice of Posting of Jury Fees; Filed by Gibraltar Convalescent Hospital Inc. (Respondent)[+] Read More [-] Read Less
Docketat 09:00 AM in Department 61, Gregory Keosian, Presiding; Order to Show Cause Re: Failure to File Proof of Service - Held - Continued[+] Read More [-] Read Less
DocketMinute Order ( (Order to Show Cause Re: Failure to File Proof of Service)); Filed by Clerk[+] Read More [-] Read Less
DocketOrder to Show Cause Failure to File Proof of Service; Filed by Clerk[+] Read More [-] Read Less
DocketNotice of Case Management Conference; Filed by Clerk[+] Read More [-] Read Less
DocketSummons (on Complaint); Filed by Estate of Haydee Torres (Petitioner)[+] Read More [-] Read Less
DocketCivil Case Cover Sheet; Filed by Estate of Haydee Torres (Petitioner); Jimmy Mejia (Petitioner); Edwin Torres (Petitioner)[+] Read More [-] Read Less
DocketCivil Case Cover Sheet; Filed by Estate of Haydee Torres (Petitioner); Jimmy Mejia (Petitioner); Edwin Torres (Petitioner)[+] Read More [-] Read Less
DocketComplaint; Filed by Estate of Haydee Torres (Petitioner); Jimmy Mejia (Petitioner); Edwin Torres (Petitioner)[+] Read More [-] Read Less
DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk[+] Read More [-] Read Less
Case Number: *******8138 Hearing Date: December 10, 2019 Dept: 61
Defendant Kamalakar Rambhatla’s Demurrer to the First Amended Complaint is SUSTAINED as to the First Cause of Action for Elder Abuse, without leave to amend.
Defendant Kamalakar Rambhatla’s Motion to Strike Portions of the First Amended Complaint is GRANTED as to the prayer for punitive damages, without leave to amend.
Defendant AHMC Greater El Monte Community Hospital LP’s Demurrer to the First Cause of Action of First Amended Complaint is OVERULED, but SUSTAINEED without leave as to the Third Cause of Action.
Defendant AHMC Greater El Monte Community Hospital LP’s Motion to Strike is DENIED.
A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., ;; 430.30, et seq.) In particular, as is relevant here, a court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See id. ; 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 [“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. [Citation.]”)
“In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)
“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Such demurrers “are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)
Rambhatla once again demurs to the First Cause of Action for Elder Abuse on the grounds that the FAC fails to allege conduct constituting neglect on Rambhatla’s part with the requisite specificity, and fails to allege the existence of a custodial relationship. (Demurrer at pp. 5–9.)
To state a claim for elder abuse, “[t]he plaintiff must allege (and ultimately prove by clear and convincing evidence) 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; (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 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). (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406–07, citations omitted.)
“[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. at p. 407, internal quotation marks omitted.)
The SAC rectifies the previous pleadings’ defective pleading of a custodial relationship existing between Rambhatla and Decedent. Elder abuse liability 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.” (Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 158.) Where the previous complaint stated only that Rambhatla was responsible for overseeing Decedent’s medical condition (FAC ¶ 36), the SAC alleges that Rambhatla assumed a custodial position over one of Decedent’s basic needs — breathing — by virtue of her supervision of Decedent’s respiratory condition throughout her stay at defendant facilities, including daily monitoring of Decedent’s “breathing status, sputum, ventilator settings, arterial blood gas, related diagnostic imaging, inhalation treatments, stool cultures, and medications.” (SAC ¶ 46.) Thus a custodial relationship is alleged.
However, the court agrees with Rambhatla that Plaintiffs have once again failed to adequately allege conduct constituting “neglect” within the meaning of the elder abuse statute. The court previously ruled that the FAC was similarly defective because all that was pleaded of Rambhatla was that he (along with all defendants) “withheld proper respiratory care.” (FAC ¶¶ 35–36.) The SAC scarcely alleges anything more with respect to the conduct constituting Rambhatla’s alleged neglect, stating only that Rambhatla failed to provide “proper care, treatment, equipment, supplies, personnel, and other measures to meet [Decedent’s] basic needs, including but not limited to ventilator equipment and care and other measures to allow her to breathe properly.” (SAC ¶ 60.) This allegation provides no greater detail concerning what Rambhatla did or failed to do in her custodial capacity over Decedent that caused her injury; it is essentially a wordier repetition of the allegation that Rambhatla “withheld proper respiratory care,” which this court found inadequate to allege neglect in Plaintiffs’ previous pleading. Because the “facts constituting the neglect” must be pleaded with particularity, Plaintiffs have once more failed to allege neglect against Rambhatla.
Rambhatla’s Demurrer to the First Cause of Action is therefore SUSTAINED. This court previously granted Plaintiffs leave to amend to address this very defect, and their amendment has proved futile. The demurrer is therefore sustained without leave to amend.
EL MONTE’S DEMURRER
El Monte demurrers to the First Cause of Action for Elder Abuse on the same grounds as Rambhatla, namely that Plaintiffs fail to adequately plead conduct constituting neglect on the part of the facility. (Demurrer at pp. 4–7.) El Monte also argues that Plaintiffs have failed to allege ratification of officers, and that the Third Cause of Action for Survival is duplicative of the First Cause of Action for Elder Abuse. (Demurrer at pp. 7–9.)
Unlike the allegations regarding Rambhatla, the SAC adequately pleads abuse against El Monte. The allegations concerning El Monte’s neglect are not limited to withholding of respiratory care, but extend to the failure to provide the care that would have prevented Decedent’s development of bedsores. The SAC alleges that El Monte knew upon Decedent’s admission that she required care and assistance with various daily tasks, including “eating, hydrating, toileting, mobility, personal hygiene, bathing, dressing, grooming, and breathing,” and thus had knowledge that bedsores were substantially certain to befall Decedent without adequate care. (SAC ¶¶ 64–65.) Despite this knowledge, El Monte failed to provide the care that was called for, and failed to turn and reposition Decedent every two hours, failed to provide pressure relieving devices to prevent skin breakdown. (SAC ¶ 69.) It is further alleged that this failure to provide adequate care arose from the decision of El Monte’s officers and directors to cut costs by maintaining staff at inadequate levels (SAC ¶¶ 15, 23, 72), meaning that the SAC adequately alleges ratification of this conduct by El Monte’s officers. These allegations together are adequate to allege a reckless failure to provide medical care to Decedent under the elder abuse statute.
As to the survival cause of action, El Monte argues that it is redundant of the first cause of action for elder abuse, in that it simply states the right of Decedent’s successors to plead claims that the Decedent possessed. (Demurrer at pp. 8–9.) Plaintiffs respond that the claim helps to clarify the pleadings. (Opposition at p. 8.)
The parties thus agree that the third cause of action for survival is not a separate cause of action but a means of stating that Plaintiffs bring other substantive claims possessed by Decedent and her estate. (See Code Civ. Proc. ; 377.20 [causes of action survive death of person].) The demurrer is properly SUSTAINED as to this cause of action as a separate cause of action, but not as to the allegations within it establishing Plaintiffs’ capacity to bring suit on a survival basis for the Elder Abuse claim.
El Monte’s Demurrer to the First Cause of Action is OVERRULED, and its demurrer to the Third Cause of Action is SUSTAINED, without leave to amend.
MOTIONS TO STRIKE
Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., ; 435(b)(1)). The notice of motion to strike a portion of a pleading shall quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count or defense. (California Rules of Court Rule 3.1322.)
The grounds for a motion to strike shall appear on the face of the challenged pleading or form any matter of which the court is required to take judicial notice. (Code Civ. Proc., ; 437(a)). The court then may strike out any irrelevant, false, or improper matter inserted in any pleading and strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., ; 436.) When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend. (Perlman v. Municipal Court (1979) 99 Cal.App.3d 568, 575.)
Punitive damages are allowed in non-contract cases when a defendant is guilty of “oppression, fraud, or malice . . . .” (Civ. Code ; 3294.) The terms are defined as:
“Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.
“Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.
“Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.
Something more than the mere commission of a tort is always required for punitive damages. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894.) Proof of negligence, gross negligence, or recklessness is insufficient to warrant an award of punitive damages. (Dawes v. Sup.Ct. (Mardian) (1980) 111 Cal.App.3d 82, 88–89.) Punitive damages may be recovered in an action for negligence or other nonintentional torts if the plaintiff pleads and proves that the defendant acted with the state of mind described as “conscious disregard” of the potential dangers to others. (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299.) When malice is based on a defendant’s conscious disregard of Plaintiff’s rights, the conduct must be both despicable and willful. (College Hospital v. Superior Court (1994) 8 Cal.4th 794, 713 (“College Hospital”).)
Rambhatla moves to strike Plaintiffs’ claim for punitive damages on the grounds that punitive damages cannot be pleaded in a medical negligence action without leave of court under Code of Civil Procedure ; 425.13, and that though an elder abuse claim could support a claim for punitive damages if properly pleaded, the claim presented in the FAC is not so pleaded. (Motion at pp. 2–7.) Plaintiffs argue in response that they have adequately pleaded an elder abuse claim. (Opposition at pp. 4–11.) Because the court, as discussed above, has found otherwise, this argument avails nothing.
El Monte likewise seeks to strike the prayer for punitive damages, as well as allegations concerning elder abuse in the Third Cause of Action for Survival, on the grounds that elder abuse is not adequately pleaded as to them. (Motion at pp. 4–11.) But because this court has found the elder abuse claim adequate as against El Monte, the motion is properly DENIED.
Rambhatla’s Motion to Strike is GRANTED without leave to amend as to the prayer for punitive damages. El Monte’s Motion to Strike is DENIED.