JANET MARSHALL (AKA JANITH MARSHALL), BY AND THROUGH HER SUCCESSOR IN INTEREST, CHRISTINE EVANS, ET AL. VS OAK PARK MANOR, LP, ET AL.

Tentative Rulings

Case Number: *******2166 Hearing Date: September 21, 2022 Dept: O

1. Defendant Oak Park Manor, LP’s Demurrer to the Plaintiffs’ First Amended Complaint is SUSTAINED. The court will hear from counsel for Plaintiffs as to whether leave to amend is requested, and as to which cause(s) of action, and will require an offer of proof if so.

2. Defendant Oak Park Manor, LP’s Motion to Strike Portions of Plaintiffs’ First Amended Complaint is DENIED as moot in part (i.e., as to general damages, attorney’s fees and punitive damages) and otherwise DENIED (i.e., as to costs of suit and pre-judgment and post-judgment interest).

3. Defendants GT Madison Realty, LLC’s and Madison Realty Equities, LLC’s Motion to Strike Portions of First Amended Complaint is TAKEN OFF-CALENDAR.

Background

Plaintiffs Janet Marshall (aka Janith Marshall), by and through her Successor in Interest, Christine Evans, Christine Evans, Bruce Marshall, Jeffrey Marshall and Mary Michelle Smith (“Plaintiffs”) allege as follows: Janet Marshall (“Janet”) was a patient at Oak Park Manor from April 12, 2015 until June 8, 2019. Janet died on June 8, 2019 as a result of deficiencies in care.

On August 10, 2021, this action was transferred from the Department 31 of the Personal Injury Court to Department R. On September 1, 2021, this action was transferred from Department R to this instant department.

On March 25, 2022, Plaintiffs filed a First Amended Complaint, asserting causes of action against Oak Park Manor, LP (“Oak Park Manor”), GT Madison Realty, LLC (“GT Madison”), Madison Realty Equities, LLC (“MRE”), Nominal Defendant Monica Marshall and Does 1-100 for:

1. Elder Abuse/Neglect (Welf & Inst. Code Sections 15600, et seq.)

2. Negligence/Negligence Per Se

3. Negligence

4. Wrongful Death

A Trial Setting Conference is set for September 21, 2022.

1. Defendant Oak Park Manor’s Demurrer

Legal Standard

A demurrer may be made on the grounds that the pleading does not state facts sufficient to constitute a cause of action. (Code Civ. Proc., 430.10, subd. (e).)

When considering demurrers, courts read the allegations liberally and in context. 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 [citations omitted].) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) “[A] demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction placed on an instrument pleaded therein, or facts impossible in law, or allegations contrary to facts of which a court may take judicial knowledge.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [citations omitted].)

Discussion

Oak Park Manor demurs, pursuant to Code of Civil Procedure 430.10, subdivision (e), to the first and fourth causes of action in Plaintiffs’ FAC, on the basis that they both fail to state facts sufficient to constitute causes of action.

Merits

1. First Cause of Action (i.e., Elder Abuse/Neglect (Welf & Inst. Code Sections 15600,

et seq.)

The elements of a cause of action for elder abuse and neglect are determined by the Elder Abuse and Dependent Adult Civil Protection Act (“EADACPA”). (Welf. & Inst. Code 15600 et seq.)

At the outset, the EADACPA excludes liability for acts of professional negligence; it does not apply to simple or gross negligence by health care providers. (Delaney v. Baker (1999) 20 Cal.4^th 23, 32; Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 785.) Several factors “must be present for conduct to constitute neglect within the meaning of the Elder Abuse Act and thereby trigger the enhanced remedies available under the Act. The 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). The plaintiff must also allege (and ultimately prove by clear and convincing evidence) that the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering. Finally, the 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.” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4^th 396, 406-407 [quotation marks and citations omitted].) Neglect under the EADACPA “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. Thus, the statutory definition of ‘neglect’ speaks not of the undertaking of medical services, but of the failure to provide medical care.” (Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 89 [quotation marks and citation omitted].)

Moreover, “[i]n order to obtain the [EADACPA’s] heightened remedies, a plaintiff must allege conduct essentially equivalent to conduct that would support recovery of punitive damages. (Compare Welf & Inst. Code, 15657 [requiring ‘clear and convincing evidence that a defendant is liable for’ elder abuse and ‘has been guilty of recklessness, oppression, fraud, or malice in the commission of the abuse’] with Civ. Code, 3294, subd. (a) [requiring ‘clear and convincing evidence’ that the defendant has been guilty of oppression, fraud or malice].)” (Covenant Care, supra, 32 Cal.4^th at 789.) When an elder abuse claim is brought against a corporate defendant, the plaintiff must further show that an officer, director or managing agent authorized or ratified the abuse or neglect. (Welf & Inst. Code, 15657, subd. (c); Civ. Code, 3294.)

The court determines that Plaintiffs have failed to plead a cause of action for elder abuse. Plaintiffs have failed to plead with specificity facts demonstrating that Oak Park Manor failed to provide care to Plaintiffs’ decedent “either with knowledge that injury was substantially certain to befall the elder or dependent adult . . . or with conscious disregard of the high probability of such injury. . .” (Carter, supra, 198 Cal.App.4th at 407.) The FAC fails to specify how any act or omission by Defendant constituted anything beyond negligence.

Plaintiff’s FAC alleges, in relevant part, as follows:

Plaintiffs’ decedent was admitted to Oak Park Manor on April 12, 2015. (FAC, 28.) On an unknown date and time, decedent’s head was observed stuck in the side rail of her bed. (Id., 30.) On June 7, 2018, decedent’s daughter complained that decedent’s knee appeared broken or dislocated, which Plaintiffs conclude, without more, evidenced “rough handling” by staff. (Id., 31.) In or around February 2019, decedent developed a rash from a scabies infection, which remained unresolved through June 2019. (Id., 32-34, 37, 39-48.) Plaintiffs conclude that Defendants “had actual or constructive knowledge” of the scabies infection and “negligently, recklessly, or willfully concealed [same] from [decedent’s physician and family].” (Id., 33.) Plaintiffs, however, have also pled that decedent’s doctor ordered triamcinolone 0.1% (corticosteroid) ointment for skin rashes on March 7, 2019, that staff disinfected and refreshed decedent’s bedding on March 25, 2019, that another treatment order was obtained from decedent’s physician on April 12, 2019 and that on May 7, 2019, decedent was scheduled to undergo a skin scrape for a skin culture. (Id., 33, 36, 38 and 42.)

Plaintiffs fail to allege facts reflecting that Defendant’s staff did not treat decedent’s skin condition, or that staff provided treatment in an abusive manner. On March 20, 2019, decedent sustained a skin tear to the left elbow which, again, Plaintiffs summarily claim was caused by “rough handling by Defendants’ staff.” (Id., 35.) On May 5, 2019, the nurse had to provide peri care, because decedent had a bowel movement smear. (Id., 41.) On June 8, 2019, decedent was actively dying. (Id., 49.) Decedent died later that day. (Id., 50.) Following decedent’s death, several members of decedent’s family developed scabies. (Id., 51.)

Further, Plaintiffs’ claim of concealment is not sufficiently pled, inasmuch as the FAC alleges that the family and decedent’s physician were advised of/were aware of decedent’s rash. (Id., 32, 33, 37, 38, 40, 41 and 43-45).

Plaintiffs also rely on allegations of inadequate staffing to establish liability for Elder Abuse. Defendant argues that Plaintiffs’ allegations are insufficient pursuant to Worsham v. O’Connor Hospital (2014) 226 Cal.App.4th 331. In Worsham, a former resident of O’Connor Transitional Care Unit (“TCU”) sued TCU after falling and breaking her arm and hip. TCU demurred to the Elder Abuse cause of action in plaintiff’s Second Amended Complaint (“SAC”), which the trial court sustained without leave to amend, on the basis that “ ‘[a]lthough [Ms. Worsham] alleges [O’Connor] acted recklessly by deliberately understaffing and undertraining, [Ms. Worsham] has not sufficiently supported the allegations with particular facts.” (Id. at 335.)

The Sixth District Court of Appeal, in affirming the trial court’s judgment, noted that the SAC alleged that TCU was required to maintain specific staff-to-patient ratios to address the needs of patients and to ensure compliance with state and federal law, that TCU was chronically understaffed and did not adequately train the staff it did have, that TCU was aware that plaintiff had a risk of falling, that TCU failed to have the proper staffing in place to prevent plaintiff’s fall and that, as a result of TCU’s insufficient staffing, plaintiff suffered a fall that resulted in a broken arm and hip. Nevertheless, the Court of Appeal concluded that “[t]he allegations . . . are not sufficient to render O’Connor’s conduct in failing to provide adequate staffing anything more than professional negligence. The allegations, if true, demonstrate O’Connor’s negligence in the undertaking of medical services, not a ‘fundamental “[f]ailure to provide medical care for physical and mental health needs.’” (Id. at 338, quoting Delaney, supra, 20 Cal.4^th at 34 (emphasis theirs).)

Like Worsham, here, Plaintiffs are claiming without factual support that Defendant was understaffed and that the understaffing resulted in harm.

Finally, Plaintiffs’ allegations regarding corporate authorization or ratification are fact-barren.

Accordingly, Oak Park Manor’s demurrer to the first cause of action is sustained.

2. Fourth Cause of Action (i.e., Wrongful Death)

The elements of a cause of action for wrongful death are (1) a “wrongful act or neglect” on the part of one or more persons that (2) “cause[s]” (3) the “death of [another] person.” (Norgart v. Upjohn Co. (1999) 21 Cal.4^th 383, 390; Code Civ. Proc., 377.60.)

Plaintiffs have not pled a causal connection between Oak Park Manor’s alleged misconduct and decedent’s death.

Oak Park Manor’s demurrer to the fourth cause of action is sustained.

2. Defendant Oak Park Manor’s Motion to Strike

Legal Standard

Pursuant to Code of Civil Procedure section 436, “the court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) 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.” The grounds for a motion to strike must “appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., 437.)

Discussion

Oak Park Manor moves the court for an order striking out the following portions of Plaintiffs’ FAC:

1. Page 23, line 18 (i.e., general damages);

2. Page 23, lines 20-21 (i.e., attorney’s fees and costs per Welfare & Institutions Code 15657(a))

3. Page 23, line 22 (i.e., pre-judgment and post-judgment interest);

4. Page 23, line 23 (i.e., punitive damages); and

5. Page 23, line 24 (i.e., costs of suit).

At the outset, the motion is denied as moot in part (i.e., as to general damages, attorney’s fees and punitive damages), based on the ruling made on the demurrer. The motion is otherwise summarily denied (i.e., as to costs of suit and pre-judgment and post-judgment interest), inasmuch as Defendant fails to set forth any legal or factual basis for these requests.

3. Defendants GT Madison’s/MRE’s Motion to Strike

Discussion

The instant motion was filed on April 26, 2022. On May 19, 2022, the court granted Chiao & Wu, LLP’s motion to be relieved as counsel for GT Madison and MRE. Since that time, GT Madison and MRE have failed to obtain new counsel.

“[A] corporation, unlike a natural person, cannot represent itself before courts of record in propria persona, nor can it represent itself through a corporate officer, director or other employee who is not an attorney. It must be represented by licensed counsel in proceedings before courts of record.” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1145.)

The instant motion is taken off-calendar on this basis.

Case Number: *******2166 Hearing Date: May 19, 2022 Dept: O

1. Counsel for Defendant Madison Realty Equities, LLC’s (i.e., Chiao & Wu, LLP)

Motion to be Relieved as Counsel is GRANTED, effective upon the filing of the proof of

service showing service of the signed order upon the Client at the Client’s last known

address.

2. Counsel for Defendant GT Madison Realty, LLC’s (i.e., Chiao & Wu, LLP) MOTION TO BE RELIEVED AS COUNSEL is GRANTED, effective upon the filing of the proof of service showing service of the signed order upon the Client at the Client’s last known address.

Background

Plaintiffs Janet Marshall (aka Janith Marshall), by and through her Successor in Interest, Christine Evans, Christine Evans, Bruce Marshall, Jeffrey Marshall and Mary Michelle Smith (“Plaintiffs”) allege as follows:

Janet Marshall (“Janet”) was a patient at Oak Park Manor from April 12, 2015 until June 8, 2019. Janet died on June 8, 2019 as a result of deficiencies in care.

On August 10, 2021, this action was transferred from the Department 31 of the Personal Injury Court to Department R. On September 1, 2021, this action was transferred from Department R to this instant department.

On March 25, 2022, Plaintiffs filed a First Amended Complaint, asserting causes of action against Oak Park Manor, LP (“Oak Park Manor”), GT Madison Realty, LLC (“GT Madison”), Madison Realty Equities, LLC (“MRE”), Nominal Defendant Monica Marshall and Does 1-100 for:

1. Elder Abuse/Neglect (Welf & Inst. Code Sections 15600, et seq.)

2. Negligence/Negligence Per Se

3. Negligence

4. Wrongful Death

A Trial Setting Conference is set for May 19, 2022.

1. Motion to be Relieved Re: MRE

Chiao & Wu, LLP (“Firm”) seeks to be relieved as counsel of record for MRE (“Client”).

The court has discretion to allow an attorney to withdraw, and such a motion should be granted provided that there is no prejudice to the client and it does not disrupt the orderly process of

justice. (See Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915; People v. Prince (1968) 268 Cal.App.2d 398.)

California Rule of Court (“CRC”) Rule 3.1362 requires (1) a notice of motion and motion directed to the client (made on the Notice of Motion and Motion to Be Relieved as Counsel—Civil form (MC-051)); (2) a declaration stating in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure 284(2) is brought instead of filing a consent under section 284(1) (made on the Declaration in Support of Attorney's Motion to Be Relieved as Counsel—Civil form (MC-052)); (3) service of the notice of motion and motion, the declaration, and the proposed order on the client and on all other parties who have appeared in the case; and (4) a proposed order relieving counsel (prepared on the Order Granting Attorney's Motion to Be Relieved as Counsel—Civil form (MC-053)). The court may delay the effective date of the order relieving counsel until proof of service of a copy of the signed order on the client has been filed with the court.

Attorney Ching K. Chiao (“Chiao”) states in his declaration that “[MRE] was provided the opportunity to execute a substitution of attorney but declined. [Firm] now has an irreconcilable conflict and dispute with [MRE] which will interfere with the provision of effective assistance of counsel in this matter to [MRE].”

Chiao states that he has served the Client by mail at the Client’s last known address with copies of the motion papers served with his declaration, and that he has confirmed, within the past 30 days, that the address is current, via email and phone conference.

The court determines that the requirements of Rules of Court Rule 3.1362 enumerated above

have been sufficiently met.

Accordingly, the motion is granted, effective upon the filing of the proof of service reflecting

service of the signed order upon the Client at the Client’s last known address.

2. Motion to be Relieved Re: GT Madison

Firm also seeks to be relieved as counsel of record for GT Madison (“Client”).

See Legal Standard set forth above.

Chiao states in his declaration that “[Firm] now has an irreconcilable conflict and dispute with [GT Madison] which will interfere with the provision of effective assistance of counsel in this matter to [GT Madison].”

Chiao states that he has served the Client by mail at the Client’s last known address with copies of the motion papers served with his declaration, and that he has confirmed, within the past 30 days, that the address is current, via email.

The court determines that the requirements of Rules of Court Rule 3.1362 enumerated above

have been sufficiently met.

Accordingly, the motion is granted, effective upon the filing of the proof of service reflecting

service of the signed order upon the Client at the Client’s last known address.

Case Number: *******2166 Hearing Date: March 8, 2022 Dept: O

1. Defendant Oak Park Manor, LP’s Demurrer to Plaintiffs’ Complaint is SUSTAINED, with leave to amend.

2. Defendant Oak Park Manor, LP’s Motion to Strike Portions of Plaintiffs’ Complaint is DENIED as MOOT.

3. Defendants GT Madison Realty, LLC’s and Madison Realty Equities, LLC’s Motion to Strike Portions of Complaint is GRANTED, with leave to amend.

Background

Plaintiffs Janet Marshall (aka Janith Marshall), by and through her Successor in Interest, Christine Evans, Christine Evans, Bruce Marshall, Jeffrey Marshall and Mary Michelle Smith (“Plaintiffs”) allege as follows:

Janet Marshall (“Janet”) was a patient at Oak Park Manor from April 12, 2015 until June 8, 2019. Janet died on June 8, 2019 as a result of deficiencies in care.

On March 30, 2021, Plaintiffs filed a complaint, asserting causes of action against Oak Park Manor, LP (“Oak Park Manor”), GT Madison Realty, LLC (“GT Madison”), Madison Realty Equities, LLC (“MRE”), Nominal Defendant Monica Marshall and Does 1-100 for:

1. Elder Abuse/Neglect (Welf & Inst. Code Sections 15600, et seq.)

2. Negligence/Negligence Per Se

3. Negligence

4. Negligent Hiring and Supervision

5. Wrongful Death

On August 10, 2021, this action was transferred from the Department 31 of the Personal Injury Court to Department R. On September 1, 2021, this action was transferred from Department R to this instant department.

A Trial Setting Conference is set for March 8, 2022.

1. Defendant Oak Park Manor’s Demurrer

Legal Standard

A demurrer may be made on the grounds that the pleading does not state facts sufficient to constitute a cause of action. (Code Civ. Proc., 430.10, subd. (e).)

When considering demurrers, courts read the allegations liberally and in context. 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 [citations omitted].) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) “[A] demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction placed on an instrument pleaded therein, or facts impossible in law, or allegations contrary to facts of which a court may take judicial knowledge.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [citations omitted].)

Discussion

Oak Park Manor demurs, per Code of Civil Procedure 430.10, subdivision (e), to the first, second, fourth and fifth causes of action in Plaintiffs’ complaint, on the basis that they fail to state facts sufficient to constitute causes of action.

Request for Judicial Notice

At the outset, the court rules on Oak Park Manor’s Request for Judicial Notice (“RJN”) as follows:

Granted as to Exhibit A (i.e., “Order Appointing Receiver Pursuant to Stipulation; and Preliminary Injunction” filed December 17, 2019 in case styled Sunwest Bank v. Oak Park Manor, LP, et al., Case No. 30-2019-01114433-CU-CO-CJC [“Sunwest Bank case”]).

The court rules on Plaintiffs’ RJN as follows:

Granted as to Exhibit A (i.e., “Notice of Ruling on Receiver, Stephen J. Donnell’s, Motion for Order: (1) Accepting and Approving Receiver’s Final Accounting; (2) Approving the Payment of Outstanding Administrative and Professional Fees and Expenses; (3) Preserving Pending Claims Against the Receivership Estate; (4) Discharging and Releasing the Receiver and (5) Exonerating Receiver’s Bond” filed November 30, 2021 in the Sunwest Bank case, which attaches the court’s November 22, 2021 minute order in said case.)

Merits

Receivership Order

At the outset, Oak Park Manor contends that Plaintiffs filed the instant complaint without first seeking leave from the Orange County Superior Court to do so, in violation of an “Order Appointing Receiver Pursuant to Stipulation; and Preliminary Injunction” (“Receiver Order”) filed December 17, 2019 in the Sunwest Bank case. (Oak Park Manor’s RJN, Exh. A.) The Order provides, in relevant part, that “except by leave of this Court, during the pendency of the receivership ordered herein . . . all customers . . . and other persons seeking to establish or enforce any claim, right or interest against or on behalf of Defendants . . . are hereby stayed from: Commencing, prosecuting, continuing, or enforcing any suit or proceeding against Defendants.” (Id., 10:17-26.)

Plaintiffs, in opposition, contend that they do not need to seek leave, inasmuch as the receiver was discharged and released in the Sunwest Bank case on November 22, 2021. (Plaintiff’s RJN, Exh. A; see also Yee Decl., 2, Exh. A.)

The court will proceed to the merits of Oak Manor Park’s demurrer on this basis.

First Cause of Action (i.e., Elder Abuse/Neglect (Welf & Inst. Code Sections 15600, et seq.)

The elements of a cause of action for elder abuse and neglect are determined by the Elder Abuse and Dependent Adult Civil Protection Act (“EADACPA”). (Welf. & Inst. Code 15600 et seq..)

At the outset, the EADACPA excludes liability for acts of professional negligence; it does not apply to simple or gross negligence by health care providers. (Delaney v. Baker (1999) 20 Cal.4^th 23, 32; Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4^th 771, 785.) Several factors “must be present for conduct to constitute neglect within the meaning of the Elder Abuse Act and thereby trigger the enhanced remedies available under the Act. The 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). The plaintiff must also allege (and ultimately prove by clear and convincing evidence) that the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering. Finally, the 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.” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4^th 396, 406-407 [quotation marks and citations omitted].) Neglect under the EADACPA “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. Thus, the statutory definition of ‘neglect’ speaks not of the undertaking of medical services, but of the failure to provide medical care.” (Sababin v. Superior Court (2006) 144 Cal.App.4^th 81, 89 [quotation marks and citation omitted].)

Moreover, “[i]n order to obtain the [EADACPA’s] heightened remedies, a plaintiff must allege conduct essentially equivalent to conduct that would support recovery of punitive damages. (Compare Welf & Inst. Code, 15657 [requiring ‘clear and convincing evidence that a defendant is liable for’ elder abuse and ‘has been guilty of recklessness, oppression, fraud, or malice in the commission of the abuse’] with Civ. Code, 3294, subd. (a) [requiring ‘clear and convincing evidence’ that the defendant has been guilty of oppression, fraud or malice].)” (Covenant Care, supra, 32 Cal.4^th at 789.) When an elder abuse claim is brought against a corporate defendant, the plaintiff must further show that an officer, director or managing agent authorized or ratified the abuse or neglect. (Welf & Inst. Code, 15657, subd. (c); Civ. Code, 3294.)

The court determines that Plaintiffs have failed to plead a cause of action for elder abuse. Plaintiffs have failed to plead with specificity facts demonstrating that Oak Park Manor failed to provide care to Plaintiffs’ decedent “either with knowledge that injury was substantially certain to befall the elder or dependent adult . . . or with conscious disregard of the high probability of such injury. . .” (Carter, supra, 198 Cal.App.4^th at 407.) Plaintiffs’ complaint alleges, in relevant part, as follows: Plaintiffs’ decedent was admitted to Oak Park Manor on April 12, 2015. (Complaint, 27.) On May 20, 2015, Plaintiff was struck on the bridge of her nose by another resident’s purse. (Id., 31.) Defendants failed to report this incident. (Id.) On May 16, 2016, Plaintiff fell out of her wheelchair “due to staff incompetence.” (Id., 34.) On July 8, 2016, another resident struck Plaintiff’s right hand/wriest with his cane. (Id., 36.) Defendants failed to report this incident. (Id.) On February 14, 2017, Plaintiff developed a skin tear to her lower left arm “due to rough handling by Defendants’ staff.” (Id., 38.) On March 3, 2017, staff noticed a wound to Plaintiff’s lower left with open area, which occurred “due to rough handling by staff.” (Id., 39.) Plaintiff lost weight between November 9, 2016 and February 16, 2018, due to defendants’ withholding of appropriate nutrition. (Id., 37-45.) On March 15, 2018, care staff found Plaintiff choking on her blood and with a bloody nose. (Id., 46.) On a separate occasion on an unknown date and time, Plaintiff’s head was observed stuck in the side rail of her bed. (Id., 47.) In or around February 2019, decedent developed a rash, which remained unresolved through June 2019. (Id., 49-69.) On June 8, 2019, decedent died. (Id., 71.) Following decedent’s death, several members of decedent’s family developed scabies. (Id., 72.)

Plaintiffs’ allegations regarding corporate authorization or ratification are likewise fact barren.

Accordingly, Oak Park Manor’s demurrer to the first cause of action is sustained.

Second Cause of Action (i.e., Negligence/Negligence Per Se)

“Negligence is an unintentional tort. . . A negligent person has no desire to cause the harm that results from his carelessness. And he must be distinguished from a person guilty of willful misconduct, . . . who intends to cause harm. Willfulness and negligence are contradictory terms. If conduct is negligent, it is not willful; if it is willful, it is not negligent.” (Donnelly v. Southern Pac. Co. (1941) 18 Cal.2d 863, 869.)

Plaintiffs’ second cause of action does not allege that Oak Park Manor’s wrongful conduct arose from inadvertence, incompetence, unskillfulness, or a failure to take precautions, but instead from “outrageous, despicable conduct carried out with a willful and conscious disregard for the rights and safety of others.” (Complaint, 95.) Plaintiffs’ second cause of action is predicated on intentional wrongdoing rather than alleged substandard care. (Id., 91 [During the period of her residency. . ., Defendants, and each of them, continually, willfully, and recklessly breached their duties to [decedent] . . . Defendants, and each of them, acted with conscious disregard of Plaintiff’s rights, health, and safety . . .”].)

Plaintiffs’ second cause of action appears redundant of the first cause of action; as such, Oak Park Manor’s demurrer to the second cause of action is sustained.

Fourth Cause of Action (i.e., Negligent Hiring and Supervision)

“[A]n employer can be held liable for negligent hiring if he knows the employee is unfit, or has reason to believe the employee is unfit or fails to use reasonable care to discover the employee's unfitness before hiring him.” (Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4^th 828, 843.) “Liability is based upon the facts that the employer knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.” (Doe v. Capital Cities (1996) 50 Cal.App.4^th 1038, 1054.) Furthermore, “there can be no liability for negligent supervision in the absence of knowledge by the principal that the agent or servant was a person who could not be trusted to act properly without being supervised.” (Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4^th 377, 395 [internal quotations and citation omitted].)

Plaintiffs fail to allege which staff members were negligently hired or supervised, what these staff members did, or when the alleged actions occurred. Plaintiffs fail to allege facts demonstrating that Oak Park Manor knew or should have known that these employees were unfit to perform their job duties.

Oak Park Manor’s demurrer to the fourth cause of action is sustained.

Fifth Cause of Action (i.e., Wrongful Death)

The elements of a cause of action for wrongful death are (1) a “wrongful act or neglect” on the part of one or more persons that (2) “cause[s]” (3) the “death of [another] person.” (Norgart v. Upjohn Co. (1999) 21 Cal.4^th 383, 390; Code Civ. Proc., 377.60.)

Plaintiffs have not pled a causal connection between Oak Park Manor’s alleged misconduct and decedent’s death.

Oak Park Manor’s demurrer to the fifth cause of action is sustained.

2. Defendant Oak Park Manor’s Motion to Strike

Based upon the ruling made on the demurer, Oak Park Manor’s motion to strike is denied as moot.

3. Defendants GT Madison’s/Madison Realty’s Motion to Strike

Legal Standard

Pursuant to Code of Civil Procedure section 436, “the court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) 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.” The grounds for a motion to strike must “appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., 437.)

Discussion

GT Madison and MRE move the court for an order to strike out the following portions of Plaintiffs’ complaint:

Page 19:4-10, 89 (i.e., “The aforementioned conduct of the Defendants was carried out

in a deliberate, outrageous, reckless, cold, callous, and intentional manner in order to injure and damage Plaintiff JANET MARSHALL or, in the alternative, was conduct carried out with a willful, reckless, profit-driven motive and in conscious disregard for the rights and safety of others and subjected Ms. MARSHALL to cruel and unjust hardship in conscious disregard for her rights. Accordingly, Plaintiff requests the assessment of punitive damages against Defendants in an amount according to proof”);

Page 21:16-22, 95 (i.e., “Because the aforementioned conduct of the Defendants was

carried out in a deliberate, profit-driven, reckless, cold, callous, and intentional manner in order to injure and damage JANET MARSHALL or, in the alternative, was outrageous, despicable conduct carried out with a willful and conscious disregard for the rights and safety of others and subjected Ms. MARSHALL to cruel and unjust hardship in conscious, disregard of her rights, Plaintiff requests the assessment of punitive damages against Defendants in an amount according to proof”);

Page 22:17-23, 102 (i.e., “Because the aforementioned conduct of the Defendants was

carried out in a deliberate, profit-driven, reckless, cold, callous, and intentional manner in order to injure and damage Plaintiffs or, in the alternative, was outrageous, despicable conduct carried out with a willful and conscious disregard for the rights and safety of others and subjected Plaintiffs to cruel and unjust hardship in conscious disregard of their rights, Plaintiffs request the assessment of punitive damages against Defendants in an amount according to proof”);

Page 25:14 (i.e., “For treble damages pursuant to Civil Code 3345”)

Page 25:15 (i.e., “For punitive damages against all Defendants”);

Page 1:26-27, 1 (i.e., “Defendants’ significant pattern of reckless and/or willful neglect

and abuse”);

Page 5:11, 16 (i.e., “in reckless and/or willful disregard of her health and safety”)

Page 6:6-8, 20 (i.e., Defendants recklessly and/or willfully failed to implement and/or enforce such policies in conscious disregard for the rights and safety of their residents, including Plaintiff JANET MARSHALL”) [words in bold only];

Page 10:18-19, 50 (i.e., “The rash would later turn out to be the result of a scabies

infection Defendants willfully or recklessly concealed from Plaintiff’s physician and family”) [words in bold only];

Page 12:8-10, 62 (i.e., “To the extent any test results revealed the presence of scabies,

said results were willfully or recklessly concealed from the residents, their family, and their other healthcare providers”) [words in bold only];

Page 12:18-21, 65 (i.e., “On May 23, 2019, the doctor ordered ketoconazole 2% cream

(antifungal) applied to skin rashes with triamcinolone 0.1% cream twice a day until further notice, again demonstrating he was never notified of the scabies outbreak or that it was willfully or recklessly concealed from him”) [words in bold only];

Page 14:5-9, 73 (i.e., Based on information and belief, Defendants willfully or

recklessly concealed the scabies outbreak so as to conceal their significant pattern of neglecting the residents. Defendants’ calculated, willful, and reckless goal was to have high occupancy, called ‘census’ to increase their monthly revenue stream consistent with their mission statement”) [words in bold only];

Page 14:26-27, 75 (i.e., “all caused by Defendants’ reckless and/or willful failures to

provide Ms. MARSHALL with the basic and specialized services she needed”) [words in bold only];

Page 15:1, 75 (i.e., “Defendants’ reckless and/or willful failures”)

Page 15:3, 76 (i.e., “result of Defendants’ willful and reckless”);

Page 16:9, 82 (i.e., “willful and/or reckless understaffing, and willful and/or reckless failure to train its staff”) [words in bold only];

Page 18:21-23, 86 (i.e., “Defendants willfully and recklessly made a calculated decision to . . .”) [words in bold only];

Page 19:6-7, 89 (i.e., “conduct carried out with a willful, reckless,”)

Page 19:18, 91 (i.e., “willfully, and recklessly”);

Page 21:19, 85 (i.e., “willful and conscious disregard”);

Page 22:7, 99 (i.e., willfully, recklessly”);

Page 22:20, 102 (i.e., “willful and conscious disregard”); and

Pages 23:8, 104; 23:20, 107; 24:2, 108; 24:9, 109 and 24:15, 109 (i.e., “recklessly and/or willfully”).

Punitive damages may be awarded upon clear and convincing evidence that a defendant has been guilty of oppression, fraud, or malice. (Civil Code 3294(a).) “Malice” is defined as “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” is defined as “despicable conduct that subject a person to cruel and unjust hardship in conscious disregard of that person’s rights.” “Fraud” is defined as “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.” (Civil Code 3294(c).)

A “conclusory characterization of defendant’s conduct as intentional, willful and fraudulent is a patently insufficient statement of ‘oppression, fraud, or malice. . .’” (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.) “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. Not only must there be circumstances of oppression, fraud, or malice, but facts must be alleged in the pleading to support such a claim.” (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166.) “[R]ecklessness alone is insufficient to sustain an award of punitive damages.” (Lackner v. North (2006) 135 Cal.App.4^th 1188, 1211.)

Plaintiffs have not sufficiently pled entitlement to punitive damages (see above). Plaintiffs’ claim for treble damages under Civil Code 3345 is also improper, inasmuch as Plaintiffs do not have a claim seeking “redress” for any “unfair or deceptive acts or practices or unfair methods of competition.”

b"

Case Number: *******2166 Hearing Date: December 14, 2021 Dept: O

After considering the evidence and arguments presented in the record, the Court the Court DENIES Defendant Oak Park Manor, LP’s Motion To Compel Arbitration. (CCP ; 1281.2.)

BACKGROUND

This is a wrongful death and survivor action arising out of allegations of negligence and/or Elderly Abuse in connection to Janet Marshall’s (“Decedent”) residency at Oak Park Manor, LP (“Defendant” and/or “OPM”), a residential care facility for the elderly.

On March 30, 2021, plaintiffs Janet Marshall, by and through her Successor in Interest, Christine Evans, et al. (collectively, the “Plaintiffs”), filed a Complaint (“Complaint”) against defendants OPM, GT Madison Realty, LLC; Madison Realty Equities, LLC; Monica Marshall; and Does 1 through 100, inclusive (collectively, the “Defendants”). The Complaint asserts the following causes of action against the Defendants:

1. Elder Abuse/Neglect (Welf. & Inst. Code Sections 15600, et seq.);

2. Negligence/Negligence Per Se;

3. Negligence;

4. Negligent Hiring and Supervision; and

5. Wrongful Death

Plaintiffs allege that Defendants engaged in a significant pattern of neglect and other misconduct resulting in numerous injuries and damages to Plaintiffs, including the death of Janet Marshall. (Yee Decl., ¶2, Exhibit A.)

On April 1, 2021, Plaintiff served Defendant OPM with this action’s Complaint, along with the summons and other documents. (Yee Decl., ¶5, Exhibit C.)

From the time Defendant OPM was served until about September 17, 2021, OPM managed to file a demurrer and motion to strike, in addition to engaging in discovery. (Yee Decl., ¶¶ 6-9; Id., Exh. D.)

On September 17, 2021, Defendant OPM filed the instant Petition To Compel Binding Arbitration, etc. Plaintiffs filed their opposition papers to the pending motion on September 21, 2021. In turn, Defendant filed its reply papers to Plaintiffs’ opposition on December 7, 2021.

ANALYSIS

Legal Standard

A party to an Arbitration Provision may seek a court order compelling the parties to arbitrate a dispute covered by the agreement. (CCP, ; 1281.2)

California statutes create a “summary proceeding” for resolving petitions or motions to compel arbitration. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972.) “The petitioner bears the burden of proving the existence of a valid Arbitration Provision by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. [Citation.] In these summary proceedings, the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the court's discretion, to reach a final determination.” (Id.)

“Thus, our Supreme Court has clearly stated that a court, before granting a petition to compel arbitration, must determine the factual issue of ‘the existence or validity of the Arbitration Provision.’ [Citation.] In this way, a court's role, though limited, is critical. ‘There is indeed a strong policy in favor of enforcing agreements to arbitrate, but there is no policy compelling persons to accept arbitration of controversies which they have not agreed to arbitrate and which no statute has made arbitrable.’ ” (Toal v. Tardif (2009) 178 Cal.App.4th 1208, 1219-1220.)

The court should grant the motion unless it finds either: (1) no written agreement to arbitrate exists; (2) the right to compel arbitration has been waived; (3) grounds exist for rescission of the agreement; or (4) litigation is pending that may render the arbitration unnecessary or create conflicting rulings on common issues. (CCP ; 1281.2, Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 215, 218-219.)

Therefore, a court’s inquiry is limited to a determination of (1) whether a valid Arbitration Provision exists and (2) whether the Arbitration Provision covers the dispute. (9 U.S.C. ; 4; Chiron Corp. v. Ortho Diagnostics Systems, Inc. (2000) 207 F.3d 1126, 1130; Howsam v. Dean Witter Reynolds, Inc. (2002) 537 U.S. 79, 84; see, Simula, Inc. v. Autoliv, Inc. (9th Cir. 1999) 175 F.3d 716 (if the finding is affirmative on both counts the FAA requires the Court to enforce the Arbitration Provision in accordance with its terms); accord Aanderud v. Sup.Ct. (Vivint Solar Developer, LLC) (2017) 13 Cal.App5th 880, 891.)

The Motion at Hand is Denied

Here, Defendant petitions the Court for an order compelling plaintiffs to arbitrate the controversy alleged in the Complaint in binding arbitration and to stay the Superior Court matter will be heard. (CCP, ; 1281.2.)

Existence of a Valid Arbitration Agreement: Mutual Assent

Defendant maintains that there is a valid arbitration agreement to arbitrate the controversies related to the instant action. At issue is:

(1) whether Christine Evans had authority to sign the arbitration agreement at issue on Decedent’s behalf (i.e., capacity to contract);

(2) whether the arbitration agreement fell within the scope of Ms. Evans’s authority to act for Decedent.

First, the party seeking arbitration has the “burden of proving the existence of a valid Arbitration Provision by a preponderance of the evidence, while a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense.” (Ruiz, supra, 232 Cal.4th at 842.)

“An ‘Arbitration Provision is subject to the same rules of construction as any other contract ....’ [Citation.] For any contract, the parties' consent is a basic element. [Citation.] In addition, the parties' consent must be communicated to one another. [Citation.] Thus, a party's consent is essential to ‘the contractual underpinning of the arbitration procedure ....’ [Citation.] ‘[T]he asserted absence of contractual consent renders arbitration, by its very definition, inapplicable to resolve the issue.’ ” (Toal, supra, 178 Cal.App.4th at p. 1221; accord Civ. Code, ; 1550(2).)

Generally, a person who is not a party to an arbitration agreement is not bound by it. (Buckner v. Tamarin (2002) 98 Cal.App.4th 140, 142.) However, there are exceptions. For example, a patient who signs an arbitration agreement at a health care facility can bind relatives who present claims arising from the patient's treatment. (Mormile v. Sinclair (1994) 21 Cal.App.4th 1508, 1511-1516; Bolanos v. Khalatian (1991) 231 Cal.App.3d 1586, 1591.)

Also, a person who is authorized to act as the patient's agent can bind the patient to an arbitration agreement. (Flores v. Evergreen at San Diego, LLC (2007) 148 Cal.App.4th 581, 587; Garrison v. Superior Court (2005) 132 Cal.App.4th 253, 263; Buckner, supra, 98 Cal.App.4th at p. 142.)

Here, Defendant maintains that there is a valid arbitration agreement that binds Plaintiffs to arbitrate the instant action because Christine Evans had authority to sign the arbitration agreement on Decedent’s behalf under a valid Healthcare Power of Attorney.

According to the Complaint, Decedent was admitted to OPM on April 12, 2015. (Complaint, ¶ 27.) The Plaintiffs allege various issues with the care provided to the Decedent from May 20, 2015 through June 7, 2018, at the Defendant’s facility.

In its moving papers, Defendant argues that at the time Decedent was admitted to its facility, Christine Evans executed an admission agreement (the “Admission Agreement”) as Decedent’s representative. (Declaration of Christopher G. Washington ISO of Defendant’s Motion (“Washington Decl.”), Exh. A, p. 19) The Admission Agreement, in turn, contained the subject Arbitration Provision (the “Arbitration Provision”) calling for all disputes to be adjudicated in arbitration. (Washington Decl., Exh. A, p. 16.)

Defendant asserts that Ms. Evans had authority to execute the Admission Agreement based on a valid Advanced Healthcare Directive/Power of Attorney (the “POA”). On April 10, 2015. Ms. Evans was designated as decedent’s agent via the attached Advanced Healthcare Directive dated October 28, 2011. (Washington Decl., Exh. B.) Thereafter, prior to executing the subject Admission Agreement containing the Arbitration Provision, decedent was diagnosed with Alzheimer, Dementia, and was noted by her physician to be unable to manage her own medication and healthcare equipment, was confused and disoriented, had wandering behavior, was unable to leave the facility unassisted, could not administer her own medications and could not manage her own cash resources. (Id., Exh. C.)

To support its position, Defendant cites to Garrison v. Superior Court (2005) 132 Cal.App.4th 253, wherein the daughter who held healthcare power of attorney for her parent was authorized and empowered to enter into an arbitration agreement on behalf of the principle.

In summary, Defendant argues that Decedent’s appointed agent, Ms. Evans, was authorized to act and make decisions for Decedent at the time the Admission Agreement was executed, per the terms of the Advanced Healthcare Directive.

Plaintiffs’ opposition first provides that the Admission Agreement/Arbitration Provision at issue was not signed by Decedent. Defendant has not presented any evidence of a valid power of attorney or conservatorship authorizing Ms. Evans to act as decedent’s legal agent. Decedent thus never created an agency relationship authorizing Ms. Evans to enter into binding contracts on her behalf.

Second, Plaintiffs argue that the POA submitted by Defendant did not authorize Ms. Evans to enter binding contracts on behalf of Decedent. Specifically, Plaintiffs contend that this document only authorizes Ms. Evans to: (1) accept or refuse treatment, nutrition, and hydration, (2) choose a particular physician or health care facility, (3) receive, or consent to the release of, medical information and records, etc. (See Washington Decl., Exh. B, p. 2.)

Third, Plaintiffs counter that this case is unlike Garrison in that the power of attorney for healthcare in that case expressly provided for several legal powers. (Garrison, supra, 132 Cal.App.4th at 253.) The Plaintiffs maintain that the terms of the POA at issue here lacks express terms that provide for several legal powers as in Garrison.

Defendant replies that Plaintiff’s arguments are inconsistent with case law that supports the use of a Healthcare POA to bind a Decedent and her heirs to an arbitration agreement/clause. The Defendant’s reply is articulated below in the Court’s analysis.

Here, the court finds that Ms. Evans had authority to bind Decedent and her heirs to the Admission Agreement and its Arbitration Provision because in executing the Admission Agreement, Ms. Evans was making a “health care decision,” that fell under the scope of the healthcare POA.

Plaintiffs contend that the healthcare POA at issue was insufficient to create the power to execute contracts on Decedent’s behalf. The Plaintiffs further argue that, to the extent Defendant’s arguments relies on the execution of the Admission Agreement as a “health care decision,” the Court should dismiss the argument because Defendant is not a licensed healthcare provider. However, Plaintiffs’ arguments overlook the case law on these issues.

First, a decision to admit a patient into a residential care facility is a “health care decision,” if the agreement to admit the patient into said facility provides for health care. Contrary to Plaintiffs’ contention, the holding in Garrison did not turn on that POA’s express terms granting legal powers. Rather, the court’s holding relied on the POA’s grant of power to make “health care decisions.” (Garrison, supra, 132 Cal.App.4th at 265.)

In Garrison, supra, 132 Cal.App.4^th at 253, the court considered whether a decedent's daughter, the attorney in fact under durable powers of attorney for health care and for financial matters, was authorized to enter into a binding Arbitration Provision on her mother's behalf when admitting her to a facility the appellate court described as a residential care facility. (Id. at pp. 256, 262.) The reviewing court concluded the daughter had such authority based on her durable power of attorney for health care, which authorized her to make “ ‘all health care decisions’ ” and did not restrict her authority as agent to enter into an Arbitration Provision on the mother's behalf. (Id. at p. 265.)

As the Garrison court viewed the matter, “[w]hether to admit an aging parent to a particular care facility is a health care decision,” and “ ‘an agent or other fiduciary who contracts for medical treatment on behalf of his beneficiary retains the authority to enter into an agreement providing for arbitration of claims for medical malpractice.’ ” (Id. at pp. 264, 266.)

Plaintiffs also argued that the Garrison decision was not on point because the care facility there was a skilled nursing facility. The Garrison court did not rely on that fact in that they never noted it. Rather, the court noted that the subject care facility was a “residential care facility.”(Garrison, supra, 132 Cal.App.4th at 256.)

Second, if the agreement to admit a patient into a residential care facility provides for health care, then either a health care power of attorney or a general power of attorney that does not preclude health care decisions, is required to execute the agreement on the patient’s behalf when the patient is incompetent at the time of admission into said facility. (Hutcheson v. Eskaton FountainWood Lodge (2017) 17 Cal.App.5th 937, 945.)

In Hutcheson, the decedent had executed a health care power of attorney (Prob. Code, ; 4671, subd. (a)) appointing her niece to make health care decisions for her (Hutcheson, at pp. 941–942, 946), and later a personal care power of attorney (Prob. Code, ;; 4123(a), 4450(b), 4459(d), 4460(a)) appointing both her sister and the niece to make decisions regarding her personal care, claims, and litigation and to enter into contracts to accomplish those purposes, but not to make health care decisions (Hutcheson, at pp. 942, 945–946). The sister later admitted the decedent to an RCFE and signed on her behalf an admission agreement that contained an Arbitration Provision. (Id. at p. 942.)

In an action against the facility after the decedent's death, the facility sought arbitration, contending the decision to admit her was not a health care decision and was authorized under the personal care power of attorney. (Hutcheson, at pp. 943–944.) The court rejected this contention, noting that RCFEs may provide medical care such as dementia care and employ medical professionals, and that the facility in question in fact provided such services to the decedent. (Id. at pp. 948–950.)

In particular, the Court of Appeals turned to the Health Care Decisions Law (Prob. Code, ; 4600 et seq.), which states that “health care” means “any care, treatment, service, or procedure to maintain, diagnose, or otherwise affect a patient's physical or mental condition” (Prob. Code, ; 4615), and a “health care decision” is a decision “regarding the patient's health care,” including selection of health care providers and institutions (Prob. Code, ; 4617). (Hutcheson, supra, at p. 946.) The court ruled that, given the facts of the case, the contract with the facility was to provide decedent with health care (as well as personal care) because the facility had agreed to provide dementia care. (Id. at pp. 949–950.) Since admitting decedent to the facility was thus a health care decision, and the sister's personal care power of attorney explicitly denounced authorization to make health care decisions, the admission agreement that included the arbitration provision was unenforceable. (Id. at p. 957.)

Third, the POA at issue is a healthcare POA that authorizes Ms. Evans to make “health care decisions,” similar to those in Garrison and Hutcheson. When construing a power of attorney, a court must consider the language of the document and give meaning to its terms. (In re Marriage of Pashley (1974) 40 Cal.App.3d 1079, 1083; Lyons v. Fire Ins. Exchange (2008) 161 Cal.App.4th 880, 886–887.) The POA at issue provides:

AGENT’S AUTHORITY

Except as limited by this document, my agent will have authority to make health care decisions for me to the extent that I now have authority to make my own health care decisions. This authority includes, but is not limited to, the authority 1) to accept or refuse treatment, nutrition and hydration, 2) to choose a particular physician or health care facility, and 3) to receive, or consent to the release of, medical information and records. Also, except as limited by this document, this authority includes the authority to authorize an autopsy, donate all or part of my body, and/or determine the disposition of my remains. The agent’s actions must be consistent with my will or trust, and with any funeral arrangements or other arrangements which I have made. (Cross this out if you do not wish your agent to have this authority.)

(Washington Decl., Exh. B, p. 2.) Thus, the POA at issue granted Ms. Evan authority to make health care decisions.

Fourth, the Admission Agreement provided health care services to Decedent and so, Ms. Evans’s had authority to sign the Admission Agreement on Decedent’s behalf, pursuant to the health care POA.

Here, the court finds that the Admission Agreement provided for health care. Defendant OPM’s facility is a residential care facility for the elderly (“RCFE”). An RCFE is “a housing arrangement chosen voluntarily by persons 60 years of age or over, or their authorized representative, where varying levels and intensities of care and supervision, protective supervision, personal care, or health-related services are provided.” (Health & Saf. Code, ; 1569.2(p)(1); see also Cal. Code Regs., tit. 22, ; 87101(r)(5).) The applicable regulations define “ ‘[r]epresentative’ ” as “an individual who has authority to act on behalf of the resident; including but not limited to, a conservator, guardian, person authorized as agent in the resident's valid advance health care directive, the resident's spouse, registered domestic partner, or family member, a person designated by the resident, or other surrogate decisionmaker designated consistent with statutory and case law.” (22 Cal. Code Regs., tit. 22, ; 87101(r)(3), italics added.)

RCFEs that accept patients with restricted health conditions must ensure that those residents “receive medical care as prescribed by the resident's physician . . . by appropriately skilled professionals acting within their scope of practice.” (Health & Saf. Code, ; 1569.39(b), italics added.) Such skilled professionals include “a registered nurse, a licensed vocational nurse, physical therapist, occupational therapist, or respiratory therapist.” (Id. ; 1569.39(c).) To that end, the residential care facility for the elderly may employ these professionals. (Id.)

The record, here, establishes that Decedent was admitted to OPM’s facility[1] due to her dementia and/or other behavioral issues on April 12, 2015. (Declaration of James E. Yee ISO Plaintiffs’ Oppo. (“Yee Decl.”), ¶ 3; Washington Decl., Exh. A, p. 3.) Defendant’s facility was aware of the Decedent’s conditions as reflect on a report by Defendant’s “Physician’s Report for Residential Care Facilities for the Elderly (RCFE).” (Washington Decl., Exh. C (for a copy of the Physician’s Report for Residential Care Facilities for the Elderly (RCFE)).) Last, the Admission Agreement itself provides that the facility would provide “assistance in meeting necessary medical and dental needs…” in addition to “assistance with taking prescribed and over-the-counter medications in accordance with physician’s instructions….” (Id., Exh. A, p. 3.)

Consequently, the Court finds that the Admission Agreement provided for health care services. Thus, under the POA, Ms. Evans had authority to admit Decedent into Defendant’s facility and sign the Admission Agreement, as part of a “health care” decision.

Hence, Ms. Evans had authority to admit Decedent to Defendant’s facility and to execute the Admission Agreement containing the Arbitration Provision. As a result, Plaintiffs’, as Decedent’s heirs, are bound by the Arbitration Provision.

At this point, though, the court notes that Defendant OPM has established the existence of a valid arbitration agreement between OPM’s predecessor and Decedent, which binds the Plaintiffs said agreement.

Existence of a Valid Arbitration Agreement: The Instant Action’s Claims Fall Within the Scope of the Arbitration ProvisionHere, Defendant argues that the claims asserted in the instant action fall within the scope of the Arbitration Provision.

“A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful.” (Civ. Code, ; 1636.) “The words of a contract are to be understood in their ordinary and popular sense, rather than according to their strict legal meaning; unless used by the parties in a technical sense, or unless a special meaning is given to them by usage, in which case the latter must be followed.” (Civ. Code, ; 1644.) The Court also recognizes the interpretational principle that a contract must be understood with reference to the circumstances under which it was made and the matter to which it relates. (Civ. Code, ; 1647.)

The Arbitration Provision states, in pertinent part, as follows:

Arbitration

It is in the interest of both the facility and the resident that any and all disputes or claims made against the facility or its employees to be resolved quickly and fairly. Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association. The Arbitrator may grant any remedy or relief that the arbitrator deems just and equitable and within the scope of the agreement of the parties, including but not limited to, specific performance of a contract

Arbitration under this agreement shall be before a single arbitrator in the county of origin in which the dispute arose and will be administered in accordance with the applicable arbitration rules and procedures of the American Arbitration Association (AAA) and California Code of Civil Procedure ;1280 et. seq, The facility shall pay the administrative fees and costs of the arbitrator, and each party shall pay their own costs and attorney fees, if any, unless the arbitrator rules otherwise. If the parties cannot agree on an arbitrator, the AAA rules will govern selection. The arbitrator's award is to be in writing, with reasons given and evidence cited for the award. Any court of competent jurisdiction may enter judgment upon the award, either by confirming the award or vacating, modifying, or correcting the award on any ground referred to in the Federal Arbitration Act or California Code of Civil Procedure 1286 et seq.

(Washington Decl., Exh. A, p. 16 (emphases omitted).)

Defendant argues that the plain language of the Arbitration Provision covers the claims arising from this action’s Complaint.

Plaintiffs’ counterarguments mainly centered on the issue of Ms. Evans’s power to execute the Admission Agreement which thereby binds the Plaintiffs.

Here, the Court finds that the claims asserted in the Complaint fall within the scope of the Arbitration Provision. The plain language of the Arbitration Provision encompasses “[a]ny controversy or claim arising out of or relating to [the Admission Agreement].” There is no ambiguity in the language. The Complaint’s claims arise from Decedent’s care at the Defendant’s facility which was provided per the Admission Agreement. Thus, the claims asserted in the Complaint fall within the scope of the Arbitration Provision.

Accordingly, Defendant OPM has met its burden of proving the existence of a valid arbitration agreement. However, since Defendant OPM itself is not a signatory to the Admission Agreement, the Court considers whether Defendant may enforce the agreement.

Defenses to Enforcement: Lack of Standing to Enforce a Contract

Plaintiffs maintains that Defendant OPM cannot enforce the Admission Agreement and its Arbitration Provision because Defendant OPM was not a signatory to the Admission Agreement.

Specifically, the Admission Agreement lists “Oak Park Manor Residential Care Alzheimer’s and Dementia Care, Facility #197801458” as the Facility and “Meredith Kirkpatrick” as the Licensee in the agreement. (See Washington Decl., Exh. A, p. 3.) Defendant OPM is not the same entity. It was licensed under Facility No. 198601892 on April 2, 2018, well after the signing of the agreement in question. (Yee Decl., ¶4, Exhibit B.) Defendants GT Madison Realty, LLC and Madison Realty Equities, LLC are nowhere mentioned in the agreement and did not become licensees of the facility until April 2, 2018 as well. (Id.)

Moreover, Plaintiffs note that nowhere does the Admission Agreement indicate it encompasses all successors, heirs, or assigns of the Facility or the Licensee. To the contrary, it expressly states at page 3, second paragraph, last sentence, “No rights or duties contained within this contract can be assigned or transferred or delegated to other persons or parties.” (Washington Decl., Exh. A, p. 3.) Thus, under the express terms of the Admission Agreement, the Defendants in the instant action are simply not parties thereto.

Defendant replies that it is a party to the Admission Agreement because the agreement expressly states that it pertains to “any and all disputes or claims made against the facility or its employees.” It also expressly states, “Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration….”

Here, the court finds that Plaintiff has met its burden of asserting a defense to the enforcement of the Admission Agreement. The plain language of the Admission Agreement does not identify Defendant as a signatory, and/or does not assign rights thereunder to some successor, etc. (Washington Decl., Exh. A, p. 3.) While Plaintiffs failed to address whether Defendant may enforce the Admission Agreement as an intended third-party beneficiary, Defendant did not raise that point.

In regard to the argument made by Defendant OPM, Defendant only established that the claims asserted by this action’s Complaint fall within the scope of the Arbitration Provision, not that it, as a non-signatory to the Admission Agreement, may enforce the Arbitration Provision.

Defenses to Enforcement: Illegality for Violation of a Statute and/or Public Policy

Here, Plaintiffs argue that the Arbitration Provision impermissibly seeks to deprive Plaintiffs of their constitutional right to jury trial. In particular, the Plaintiffs argue that the Arbitration Provision included within the Admission Agreement is invalid on its face because it violates Health and Safety Code ; 1569.269(c), which provides that no RCFE home admission contract may include a waiver of benefits or rights.

However, Defendant did not address the argument.

Here, the court finds that the Arbitration Provision is void for being in violation of Health & Saf. Code, section 1569.269(c), and/or public policy.

“It is essential to the existence of a contract that there should be: [¶] [¶] 3. A lawful object….”(Civ. Code, ; 1550; accord Alameda County Deputy Sheriff's Association v. Alameda County Employees' Retirement Association (2020) 9 Cal.5th 1032, 1068.) Under California law, if a contract is illegal, a party may avoid arbitration. (Moncharsh v. Heily & Blase, 3 Cal. 4th 1, 29.)

The “Resident's Bill of Rights” for RCFE's (Health & Saf. Code, ; 1569.261 et seq.) prohibits an admission contract, “including all documents that a resident or his or her representative is required to sign as part of the contract for, or as a condition of, admission” to an RCFE, from requiring the resident to waive “benefits or rights to which he or she is entitled under this chapter or provided by federal or other state law or regulation” (Health & Saf. Code, ; 1569.269(c), italics added). An arbitration agreement is indisputably a waiver of the patient's legal rights, including the right to a jury trial. (Flores, supra, 148 Cal.App.4th 581, 594.)

In this case, the Arbitration Provision is in violation of Health & Saf. Code, section 1569.269(c), in that it was “part of the contract for, or as a condition of, admission” to Defendant’s facility. “A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful.” (Civ. Code, ; 1636.) “The words of a contract are to be understood in their ordinary and popular sense, rather than according to their strict legal meaning; unless used by the parties in a technical sense, or unless a special meaning is given to them by usage, in which case the latter must be followed.” (Civ. Code, ; 1644.)

To begin with, the Arbitration Provision was placed within the Admission Agreement.[2] (Washington Decl., Exh. A, p. 14.) As noted above, the Arbitration Provision, as an arbitration agreement, was indisputably a waiver of the patient's legal rights, including the right to a jury trial. (Flores, supra, 148 Cal.App.4th 581, 594.) Since Defendant and its predecessors are/were RCFEs, the Admission Agreement could not require Decedent or Ms. Evans to sign the Arbitration Provision as “part of the contract for, or as a condition of, admission” to Defendant’s facility. (Health & Saf. Code, ; 1569.269(c), italics added).

However, the plain language of Admission Agreement itself did not explain that agreeing to the Arbitration Provision was not a condition/requirement to admission. (See generally Washington Decl., Exh. A.) Nor did the plain language of the Admission Agreement contain any ambiguity to support a reasonable inference that the Arbitration Provision was optional. (Id.) Likewise the Arbitration Provision’s plain language gave no indication its terms were optional for purposes of the Admission Agreement. (Id., p. 16, Arbitration.)

Moreover, the Arbitration Provision was not distinguished from the rest of the Admission Agreement so as to indicate that the Arbitration Provision was a separate and optional agreement. For one, each page in the Admission Agreement required Ms. Evan to initial her name and so the initials required at the page for the Arbitration Provision did not distinguish the Arbitration Provision from the rest of the Admission Agreement. (See generally Washington Decl., Exh. A.) Second, the Arbitration Provision did not contain its own signature line to indicate that Ms. Evans could decline or consent to its particular terms, as a separate and optional agreement. (Id., Exh. A, p. 16, Arbitration.)

Rather, the entire Admission Agreement contained one signature line at the very end of the agreement. (Washington Decl., Exh. A, p. 19.) By presenting one signature line at the very end of the Admission Agreement that provided, “I agree to the terms stated in this contract,” the Admission Agreement unambiguously communicated that the Arbitration Provision’s terms were part of one contract. Hence, the Arbitration Provision was a condition to admission. (Id.)

The general rule that an agreement which violates a statute enacted for the protection of the public is void and unenforceable, is not applied when to do so would not serve the intended purpose of statute. (Epstein v. Stahl (1959) 176 Cal.App.2d 53.)

Here, applying the general rule to find that the Arbitration Provision violated Health & Saf. Code, section 1569.269(c), and is void would serve the intended purposes of the statute. The latter statute is part of the “Resident's Bill of Rights” for RCFEs (Health & Saf. Code, ; 1569.261 et seq.). With respect to “Resident's Bill of Rights” for RCFE's, the legislative history provides, in pertinent part, that “[t]he bill would require, at admission, a facility staff person to personally advise a resident and the resident's representative, as described, of …specified rights and to provide them with a written copy of these rights.” (RESIDENTIAL CARE FACILITIES—AGED PERSONS—PRIVACY, 2014 Cal. Legis. Serv. Ch. 702 (A.B. 2171) (WEST).)

By failing to inform Decedent and/or Ms. Evan of their rights, i.e., that they were not required to sign the Arbitration Provision as a condition to admission, the Arbitration Provision undermined the intended purpose of Health & Saf. Code, section 1569.269(c).

In this case, the court notes that the Arbitration Provision can be severed from the remainder of the Admission Agreement because the Admission Agreement is not entire.[3] Notably, the Admission Agreement itself contains a severability clause that provides that if one provision of the agreement is invalidated in a legal proceeding, the remaining provisions of the agreement shall remain in full force and effect. (Washington Decl., Exh. A, p. 16, Severability.) The Arbitration Provisions was one such provision under the Admission Agreement was unambiguously identified and distinguished from other provision. (Id., Exh. A, p. 16, Arbitration.)

As a result, the court can sever the Arbitration Provision alone since it is that provision alone that violates Health & Saf. Code, section 1569.269(c) and offends public policy, as well.[4] The result is that voiding the Arbitration Provision serves the intended purpose of section 1569.269(c) by assuring that patients and their representatives are fully informed of their legal rights and are not required to waive them in order to be admitted to health care facilities.

Accordingly, the court finds that while a valid agreement to arbitrate exists, which encompasses the claims asserted by the instant action, the arbitration agreement is void because it is in violation of Health & Saf. Code, section 1569.269(c), and in violation of public policy. (CCP ; 1281.2.)

Conclusion

Therefore, the Court DENIES Defendant Oak Park Manor, LP’s Motion To Compel Arbitration. (CCP ; 1281.2.)

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Case Number: *******2166 Hearing Date: August 10, 2021 Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

JANET MARSHALL (AKA JANITH MARSHALL), ET AL., Plaintiff, v. OAK PARK MANOR, LP, ET AL., Defendants.

Case No.: *******2166 ORDER TRANSFERRING COMPLICATED PERSONAL INJURY (PI) CASE TO AN INDEPENDENT CALENDAR (IC) COURT

INITIAL NOTE: This is not a tentative ruling. It is being posted with the tentative rulings to give Counsel notice not to appear. This is a final order and the case is being transferred.

AFTER REVIEW OF THE COURT FILE, THE COURT MAKES THE FOLLOWING ORDER:

Department 31 of the Personal Injury Court has determined that the above entitled action is complicated based upon the number of pretrial hearings and/or the complexity of the issues presented.

AT THE DIRECTION OF DEPARTMENT 1:

This case is hereby transferred and reassigned to the following Independent Calendar Court in THE EAST DISTRICT, JUDGE GLORIA WHITE-BROWN presiding in DEPT. J of the POMONA COURTHOUSE, for all purposes except trial. Department 1 hereby delegates to the Independent Calendar Court the authority to assign the cause for trial to that Independent Calendar Court.

Any pending motions or hearings, including trial and status conferences, will be reset, continued or vacated at the direction of the newly assigned Independent Calendar court.

UPON RECEIPT OF THIS NOTICE, COUNSEL FOR PLAINTIFF SHALL GIVE NOTICE TO ALL PARTIES OF RECORD.

COUNSEL ARE TO NOTE THAT EVEN IF THE CASE SUMMARY STILLS SHOWS DEPARTMENT 31 WITH FUTURE HEARINGS, COUNSEL ARE TO CONSIDER THEM TO BE OFF CALENDAR UNTIL RESET IN THE NEW DEPARTMENT ASSIGNED EITHER BY THE COURT STAFF OR THROUGH THE COURT’S RESERVATION SYSTEM BY MOVING PARTY.

DATED: August 10, 2021 ___________________________

Hon. Teresa Sanchez-Gordon

Judge of the Superior Court

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